Jessy (trading as G. Jessy Hire Cars) v Kappa [2020] PGNC 457; N8730 (28 October 2020)

N8730

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 753 OF 2016

BETWEEN:
GIDEON JESSY trading as G. JESSY HIRE CARS
Plaintiff

AND:
CONSTABLE VALI KAPPA, as a Police Officer attached with the Highway Patrol Six (6) based in Simbu Province
First Defendant

AND:
SENIOR CONSTABLE MOL SIBOA, as Commander of Highway Patrol Six (6) based in Simbu Province
Second Defendant

AND:
ALBERT BELI, as Provincial Police Commander of Simbu Province
Third Defendant

AND:
Garry Baki, as Police Commissioner
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Lae: Dowa AJ
2020: 24^th July & 28^th October

DAMAGES – assessment of damages – trial – liability established through entry of default judgment – damage caused to plaintiff’s vehicle negligently driven by first defendant as employer of the fifth defendant – fifth defendant vicariously liable for negligent actions of the first defendant – damages assessed – interest and costs awarded to plaintiff
Cases Cited:

Albert v Aine (2019) N7772

Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG

(2002) N2182
Evito Investments Ltd v Mischeq Wowongo & Menyamya District Authority (2020) N8485
Enaia Lanyat v State (1996) N1481
Graham Mappa v PNG Electricity Commission (1995) PNGLR 170

Jonathan Mangope Paraia v The State (1995) N1343
Komaip Trading v George Waugluo & The State (1995) PNGLR 165
Kekeral Farming v Queensland Insurance (1995) PNGLR 405
Obed Lalip v Fred Sekiot and The State (1996) N1457
PNGBC v Jeff Tole (2002) SC 694

Peter Wanis v Fred Sikiot and The State (2001) (N1350)
Samot v Yame (2020) N8266
Yooken Paklin v The State (2001) N2212

Counsel:

A. Chillion, for the Plaintiff
S. Maliaki, for the Defendant

RULING

28^th October, 2020

1. DOWA AJ: This is a decision on the trial on assessment of damages. Default Judgment was entered on 24^th June 2019.

2. Gideon Jessy is the owner of a Toyota Land Cruiser Reg. No. LBM 759. He alleges he was carrying on the business of Hire Cars trading under the business name G. Jessy Hire Cars.

3. On 17^th October 2015, the Plaintiff’s vehicle driven by one Yandi Pape in the company of Jessy Kaia travelling from the direction of Kundiawa towards Goroka along the Highlands highway. At a check point near Chuave market, Simbu Province, the Plaintiff’s vehicle was impounded by police for being driven without due registration.

4. The vehicle was taken off the driver and was then driven by the First Defendant, at the direction of the Second Defendant to Chuave Police Station. On the way towards the Police Station, the vehicle went off the road and caused an accident. It is alleged the accident was caused by negligent driving of the First Defendant to which the Fifth Defendant is vicariously liable.

5. As a result of the accident the plaintiff’s vehicle sustained damage, the basis of the current proceedings. The Plaintiff instituted these proceedings, claiming various heads of damages in the statement of claim as follows:

1. K150,000 for replacement value
2. K205,600.00 for loss of business

100. K11,000 for special damages

4. K248,852.66 for repair cost
5. Damages on anxiety
6. Cost of the proceedings.
   

6. On 24^th June 2019, default judgment was entered for the Plaintiff, in damages to be assessed.

Issues

7. The issues for the consideration are:

a) What is the effect of default judgment.

b) How much is the Plaintiff entitled to under each head of damages.

Effect of Default Judgment

8. The law on the effect of default judgment is settled in this jurisdiction. A trial Judge must satisfy himself with the principles summarised in the cases; Coecon Ltd (Receiver Manager) v The National Fisheries Authority of PNG (2002) N2182, PNGBC v Jeff Tole (2002) SC 694, and Albert v Aine (2019) N7772. In Albert v Aine, Kandakasi DCJ at paragraphs 7 & 8 of his Judgment said:
   

Fourthly, the law on the effect of the entry of default judgment is clear. In Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (2002) N2182, I summarised the principles that govern an assessment of damages after the entry of default judgement in the following terms:

“A survey of the authorities on assessment of damages after entry of judgement on liability mainly in default of a defendant’s defence, clearly show the following:

1. The judgement resolves all questions of liability in respect of the matters pleaded in the statement of claim.
2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
3. In the case of a claim for damages for breach of contract as in this case, such a judgement confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”
9. The Supreme Court in PNGBC v. Jeff Tole (2002) SC694 adopted and applied this summation of the principles. Later, the decision of the Supreme Court in William Mel v. Coleman Pakalia (2005) SC790, did the same. Additionally, however, the Court in that case went further by noting several decisions of the National Court in which the principles were adopted and applied. It then added the following:

“Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;

only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.”

10. In the present case I have thoroughly examined the pleadings and the cause of action. I have also considered the process and steps taken in the entry of default judgment. I am satisfied that the default judgment is in order and to that extent liability is proven.
    

Burden of Proof

11. Whilst the issue of liability is settled, the Plaintiff is still required to prove its damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.
    

13. In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

• The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
  
• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
  
• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
  
• The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”

14. I will adopt and apply these principles in the present case when considering each head of damages sought by the Plaintiff.

Evidence

15. The Plaintiff, Gideon Jessy and two witnesses, Yandi Pape and Jessy Kaia gave evidence for the Plaintiff. For the defence, First Constable Vali Kapa and Senior Constable Mol Siboa gave evidence by Affidavit and also orally. All the witnesses were cross-examined at length by respective counsel. I will refer to their evidence in the course of my judgment.

Gideon Jessy

16. The Plaintiff gave evidence that he is the proprietor of Motor Vehicle, Toyota land cruiser 10-seater, registration No. LBM 759. He purchased the vehicle from Kaiyoge Hire Cars for K85,000 on 24^th September 2015. He purchased the vehicle to run a hire car business. He gave evidence he registered a business name known as G. Jessy Hire Cars for the hire car business.

17. On 17^th October 2015, the vehicle was returning home to Lae from a trip to Jiwaka Province. At the time of travel, the vehicle was not registered and insured. He gave evidence that he could not register the vehicle in Morobe during that week because of the death of the Provincial Administrator and the Provincial Traffic Registry was closed. He gave evidence that he was permitted by the Traffic Officers in the Police station to make the trip to Jiwaka.
    
18. He gave evidence that during the cause of the trip, his vehicle was impounded by police at a section of the Highlands highway in Simbu Province for being driven without due registration`. The First Defendant, then drove the vehicle to the Kundiawa Police Station. On the way, the vehicle was driven off the road; and sustained extensive damage. The Plaintiff gave evidence that, he then went to Kundiawa the next day and towed the vehicle back to Lae. The vehicle was brought to Ela Motors, Lae. The damage was assessed and advised that it was damaged beyond economic repairs.
    
19. In his affidavit evidence, the Plaintiff gave evidence that the vehicle was damaged beyond economic repairs. However, in response to further questioning the Plaintiff said he was able to repair the vehicle which cost him K60,000.00.
    
20. The Plaintiff gave evidence that prior to the accident he was hiring the vehicle at a daily rate of K800.00 per day. He was earning between K25,000 to K30,000 a month, and attached several invoices as proof. He gave evidence that he also spent more than K11,000.00 in out of pocket expenses.
    

Kaia Jessy

21. Kaia Jessy is the brother of the Plaintiff. He gave evidence of his trip to Jiwaka in the Plaintiffs vehicle, accompanying Yande Pape, who drove the vehicle. Whilst on their return trip, policemen stopped them at a section of road in Chuave and arrested the driver for driving an unregistered vehicle on a public road. The vehicle was taken off the driver and was driven by the first Defendant.
    
22. On the way to Chuave Police Station, the driver lost control near Chuave market, along the Highway and went off the road. The vehicle rolled over and sustained extensive damage. The vehicle was then towed back to Lae the next day.
    

Yandi Papi

23. Yandi Papi gave evidence for the Plaintiff. He was the driver of the vehicle, travelling from Jiwaka to Lae. At Chuave check point, the police stopped him and questioned him for driving an unregistered vehicle. They apprehended him and the keys to the vehicle were taken off him. They were then brought back to the police station. Whilst on their way, the Plaintiff’s vehicle, which was driven by the first Defendant, lost control near Chuave market and went off the road. It rolled over and sustained extensive damage. The vehicle was then towed back to Lae and was a complete write off, beyond economic repairs.
    

Mol Siboa

24. Mol Siboa is a policeman, a Senior Constable in rank. He gave evidence for the Defendants. On 17^th October 2015, he was the Commander Highway Six based in Chuave District. He gave evidence that during a routine check, they impounded the Plaintiffs vehicle after questioning the driver, Pape Yandi. He found the vehicle was not registered, not insured and was unroad-worthy. He also established, there were no documents showing ownership. He suspected the vehicle could be a stolen vehicle and directed it to be impounded. He then directed First Constable Vali Kapa to drive the vehicle back to Chuave police station.
    
25. On the way to the station, the vehicle went off the road and rolled over, landing sideways. After the accident he drove the Plaintiff ‘s vehicle back to Chuave Police Station, and next day, the Plaintiff Gedion Jesy drove the vehicle back to Lae. Senior Constable Mol denied that the vehicle was towed back to Lae. The driver, Pape Yandi, was charged with three counts of driving without due registration, insurance and for un roadworthiness. He was found guilty and fined K250.00. He gave evidence that police also charged him and Constable Vali Kapa. Constable Kapa was convicted for driving without due care and attention.
    

Constable Yali Kapa

26. Constable Vali Kappa gave evidence for the defence. His evidence is identical to the evidence of Senior Constable Mol Siboa. He said he was permitted by Senior Constable Mol to drive the Plaintiff’s vehicle to the station. He admitted driving the Plaintiffs vehicle which went off the road, and he was charged and found guilty with driving without due care and attention. He also gave evidence that the Plaintiffs vehicle did not sustain extensive damage as alleged and was driveable.
    

Reasons for Decision

27. I have considered the pleadings, the evidence and submissions of counsel. I will now consider and assess each head of damages claimed.
    

Damages for value of motor vehicle

28. The Plaintiff claims the vehicle was extensively damaged and was towed from Kundiawa to Lae. For that reason, he made a claim for K150,000 being the price of a new vehicle at the material time. The defence refutes the Plaintiff’s evidence saying, the vehicle was not extensively damaged, and it was driven back to Lae.
    

26. The Plaintiff gave evidence that the vehicle was a write off and was beyond economic repairs. It would cost up to K248, 852.66 for repairs. Therefore, the vehicle could not be repaired.

27. However, the evidence presented showed the vehicle was subsequently registered and was up and running again sometime later after the accident. In response to further questioning, the Plaintiff said he rebuilt the vehicle again. The repairs cost him about K60,000.00. He was unable to produce the receipts for the repairs. After considering the evidence and studying the demeanour of the witnesses I accept the evidence of the defence witnesses that the vehicle was not damaged beyond economic repairs. I also find the vehicle was not new as claimed by the Plaintiff. However, I do find the vehicle did sustain some serious damage as it went off the road and plunged into a ditch and landed side-ways.

28. How much should the court award. The Plaintiff claimed initially in the writ of summons a sum of K 150,000.00. In answer to a question in cross examination, the Plaintiff said the vehicle was new, almost one year old. This is inconsistent with other evidence of the Plaintiff. In paragraph 6 of his Affidavit sworn 16^th November 2019 the Plaintiff deposed he purchased the vehicle from Kaiyoge Vehicle Hire in cash on “as is where is basis” for K85,000.00. The Plaintiff did not provide any receipt for the payment. He did not produce any bank statement or account details showing cash withdrawals for the payment. The evidence is clear. The vehicle is a used vehicle. The vehicle was not yet registered in his name at the time of accident. From the Plaintiff’s own evidence, he says, he fixed the vehicle for up to K60,000.00. However, there is no receipts for the repair cost. The Plaintiff did not even produce any evidence of the pre-accident value of the vehicle. This makes it all the more difficult to arrive at a reasonable figure.

29. Counsel for the Plaintiff submitted that a fair amount would be between K40,000.00 – K60,000.00 for the damage claim. On the other hand, the defence submitted there should be no award made. The defence submitted that the Plaintiff has not provided credible evidence, and the claim should be dismissed entirely.

30. Whilst the Plaintiff has not provided sufficient proof of his claim, there is some evidence that the Plaintiff is the registered owner of the vehicle. There is evidence from all witnesses that the vehicle had an accident and sustained damage as a direct result of the negligent driving of the first defendant. The extent of damage has been disputed and the amount for cost of repairs is not clear, because of lack of evidence.

31. The fact that damages cannot be assessed with certainty should not relieve the defendants of the necessity of paying damages. I am prepared to consider an amount that is reasonable in the circumstances. I do not intend to leave the Plaintiff without a remedy. The minimum amount submitted for the Plaintiff is K40,000.00. That amount is too high in the light of lack of evidence. To suggest a figure around K 10,000.00 would be too low given that the vehicle rolled over sideways into the drain. In my view a sum of K30,000.00 is reasonable.

32. I will make a further deduction of the award for contributory negligence. Whilst the parties have not addressed this issue, the court can on its own volition make a deduction on the proven facts. The vehicle was unregistered and un-insured at the time of accident. The Plaintiff’s vehicle should not have been on the public road in the first place. That is the reason why the vehicle was impounded by the Police. I will therefore deduct 20% on the amount of damages and award K24,000.00.

Economic Loss

33. The Plaintiff makes claim for K205,600 for economic loss. The Plaintiff submits that the vehicle was used for hire at a daily rate of K800. The Plaintiff attached some previous invoices he issued to prospective clients. I am not satisfied that the evidence is genuine. For example, one invoice was issued to CIS Barawaghi for K27,380 on 30^th August 2015 for the month of August 2015. The evidence shows the vehicle at that time was not registered or owned by the Plaintiff. The Plaintiff purchased the vehicle on 24^th September 2015. Secondly, the business name G. Jessey Hire Cars was not registered at the time of accident. The business name was only registered 12^th November 2015. The invoice was issued before he purchased the vehicle. This evidence, in my view, is fabricated. The second invoice was issued to Huon Gulf District Administration to commence from 1^st September to 30^th September 2015. Again, the Plaintiff was not the owner of the vehicle at that time. In my view this is also a fabrication.

34. Secondly, the Plaintiff has not proved he is tax and statutory compliant in order to make a claim for business loss. There is a string of cases in this jurisdiction that have stressed that a claim for loss of income has to be supported by proper tax and accounting details. I refer to a number of National Court Judgments where I was involved as counsel in some of them. Graham Mappa v PNG Electricity Commission (1995) PNGLR 170, Komaip Trading v George Waugluo & The State and Kekeral Farming v Queensland Insurance (1995) PNGLR 405. In the recent case of Evito Investments Limited v Mischeq Wowongo & Menyamya District Authority (2020) N8485, I said this at paragraph 12 of my judgment.

“....I note, the Plaintiff did not provide any evidence of tax compliance. The evidence of tax compliance would normally come from Internal Revenue Commission by the production of a statement on tax status. This would indicate whether a person is up to date with his tax obligations. The mere production of GST and TIN registration documents does not in itself prove tax compliance. This is particularly important where invoices include GST components. In the present case I would, nevertheless, make no deductions on the taxed invoices as the defendants have not filed any defence to legally raise the issue. Secondly, these invoices were issued for services actually rendered and consumed, so to speak, by the defendants as opposed to future economic loss.”

35. In the present case, the Plaintiff has not produced evidence of bank and business account details. He has not produced evidence on tax and statutory compliance details. In the absence of these details I reject his claim for economic loss.

Out of pocket expenses

36. The Plaintiff claims K11,000.00 being out of pocket expenses which comprise of K8,650.00 for towing expenses and K3,000 for fuel and food. The Plaintiff produced an invoice from Maita Yawi Hire Car which was hired for towing the vehicle back to Lae. As I have found, I am not convinced that the vehicle was towed back to Lae. Even if the vehicle was towed back to Lae, it would not have taken 6 days. I also note that the invoice contains arithmetical errors. The hire was for 6 days at the daily rate of K850.00. This would amount to K5,100.00, and not K7,650.00. I note there is no receipt for the payment. This invoice is not established with credible evidence. However, I note there is evidence of the Plaintiff making a trip to the Simbu Province on 18^th October 2015 with policemen. I am prepared to allow for four (4) days hire at K850.00 per day totalling K3,400. I will make an award for that sum.

36. The Plaintiff is claiming K3,000.00 for fuel and food. He has attached several invoices to his affidavit. I note there is an invoice of K320.00 for accommodation. I will allow the sum of K320.00.

37. In respect of fuel, I note the Plaintiff has attached 4 invoices for identical sums of K430.00 totalling K1,720.00 for the same vehicle. There is no explanation for the four different invoices. In my view, this is unreasonable. I will allow 50% only. I make an award of K860.00 for fuel.

38. The total claim for out of pocket expenses I have allowed is K4,580.00.
    

General damages for Hardship

39. The Plaintiff claims damages for pain, suffering, hardship and anxiety. Counsel for the Plaintiff submits for a sum of K10,000.00 as a reasonable sum. In my view, the Plaintiff has not proved any suffering apart from the damage to the vehicle, the subject of these proceedings. The Plaintiff has been granted part of the substantive claim and is therefore not entitled to any award in this head of damages. Secondly, it was the Plaintiff who allowed his vehicle which was not registered to be driven on the public road. He has brought it upon himself the inconvenience that was caused to him. For these reasons, no award shall be made under this head.

40. The total amount of damages I have assessed is K28,580.00.
    

Interest

41. The Plaintiff is claiming interest. I will allow interest at the rate of 8% on the amount assessed. Interest is to commence from date of writ of summons, (11/06/2016) to date of judgment (28^th October 2020) for a period of 1599 days. Interest is calculated as follows:

K28,580 x 8/100 = K 2,286.40

K 2,286.40/365 days = K 6.26 per day

K6.26 x 1599 days = K 9,977.76

42. The total award inclusive of interest is = K38, 557.76
    

Costs

43. The Plaintiff is claiming cost. I will allow cost.
    

Vicarious Liability

44. I note the actions of the First and Second Defendants which gave rise to the cause of action was done in the normal course of their official duties. I will therefore order that the Independent State of Papua New Guinea, the Fifth Defendant is vicariously liable and shall settle the Judgment Debt.

Orders

1. Judgment be entered for the Plaintiff in the sum of K38, 557.76.
2. Post Judgment interest shall accrue at the rate of 8% until settlement.
3. The Defendants shall pay the cost of the Proceedings to be taxed, if not agreed.
4. The Fifth Defendant shall settle the judgment debt.
5. Time be abridged.

______________________________________________________________
Chillion Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendant