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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 451 OF 2015
BETWEEN:
CHARLIE ANDREW
Plaintiff
AND:
GUARD DOG SECURITY SEVICES LIMITED
Defendant
Lae: Dowa AJ
2020: 28th August & 20th November
NEGLIGENCE – plaintiff seeks damages for loss incurred in a motor vehicle accident involving the defendants vehicle – trial on liability and quantum – plaintiff’s motor vehicle collided with the defendants vehicle when negligently driven by the defendants employee – issues of liability and claim under each head of damages considered – damages are paid only to put the plaintiff in his original position if the accident would not have occurred – liability is established that the defendant is vicariously liable for the negligent acts and omissions of its employee – damages assessed
Cases Cited:
Evito Investments Limited v Mischeq Wowongo & Menyamya District Authority (2020) N8485
Graham Mappa v PNG Electricity Commission (1995) PNGLR 170
Komaip Trading v George Waugluo [1995] PNGLR 165
PNGBC v Tole (2002) SC 694
The State and Kucera Farming v Queeensland Insurance [1995] PNGLR 4058
Evito Investments Limited v Mischeq Wowongo & Menyamya District Authority (2020) N8485
Yooken Paklin v The State (2001) N2212
Counsel:
M. Murray, for the Plaintiff
M. Maburau, for the Defendant
RULING
20th November, 2020
1. DOWA AJ: This is a judgment on both issues of liability and quantum. I heard the matter on 10th and 27th August 2020 and reserved my decision which I now deliver.
Facts
2. The Plaintiff is a pilot by profession. He is the owner of a motor vehicle described as Toyota Land Cruiser, Reg No. JAB 672. He alleges he was using the vehicle for hire business at the relevant time.
3. On 23rd January 2013, the Plaintiff’s vehicle collided with an oncoming vehicle, a Toyota Land Cruiser 5 door. Reg No. LAZ 112; owned and operated by the Defendant.
4. The accident took place at a section of road at Tangori village, Kubalia, along the Sepik Highway, East Sepik Province.
5. The Plaintiff’s vehicle was travelling from the direction of Maprik to Wewak. The Defendant’s vehicle was travelling from the direction of Wewak towards Maprik.
6. It is alleged that the accident was caused by one Robin Kuravit driver of the Defendant’s vehicle, who drove on high speed down a cliff. The Defendant’s driver was charged and convicted for driving without due care and attention.
7. As a result of the accident, the Plaintiff alleges, extensive damage was done to his vehicle and it was assessed that the damage was beyond economic repairs.
8. As a further result, the Plaintiff suffered loss and claims the following reliefs in the Statement of Claim:
a) Replacement of vehicle, or alternatively
b) K101,058.18 being pre-accident value
c) Economic loss at K850 per day for 3 years
d) Damages for hardship and frustration
e) Out of pocket expenses
f) Interest and cost of the proceedings
Issues
9. The issues for consideration are:
Trial
10. The trial was conducted on both issues of liability and quantum.
Burden of Proof
11. The Defendant has denied liability in the proceedings. 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.)
Evidence
12. The Plaintiff, Charlie Andrews, and his three witnesses namely Tobias Miamba, Chris Yaingon and Joe Poma gave evidence for the Plaintiff. They gave evidence by Affidavit as well as oral evidence. They were cross-examined by the Defence Counsel. The Defendant offered no evidence.
Charlie Andrews
13. The Plaintiff, Charlie Andrews, gave evidence that he is a pilot by profession. He is the owner of the Motor vehicle, Toyota Land Cruiser Reg. No. JAB 672. His vehicle got involved in a road accident on 23rd January 2013. The accident happened when a vehicle, a Toyota Land Cruiser, 5 door Reg. No. LAZ 112 owned by the Defendant collided into his vehicle. He said, the accident was caused by the negligent driving on the part of the Defendant’s driver, one Robin Kuravit. As a result, his vehicle was extensively damaged, and was assessed a write-off. He gave evidence that the pre-accident value of the vehicle was K101,058.18.
14. His evidence is that, the vehicle was purchased from Ela Motors, Wewak branch on 14th March 2012 for K138,955.00. He purchased the vehicle to hire out at the rate of K850.00 per day. He said apart from hiring out the vehicle, he also wanted to use the vehicle for the 2013 By-Election in November 2013. Because of the damage to the vehicle he had to hire other vehicles for use during the election which cost him around K40,000.
15. In respect of the hire, the Plaintiff said, he entered into preliminary agreement with the Wewak Provincial Police Commander to hire his vehicle for 3 years at the daily rate of K850.00, for the period between February 2012 to February 2015. As a result of the accident, he could not proceed with the hire agreement and he also suffered loss of K904,000.
16. In respect of the accident, the Plaintiff alleges, the driver Robin Kuravit, was charged with driving without due care and attention and was convicted.
17. The Plaintiff gave further evidence that he requested the Defendant to settle his claim. Even though the Defendant gave some indication, the Defendant Company did not settle which resulted in the current proceedings.
Tobias Miamba
18. Tobias Miamba is a policeman, with the rank of Senior Constable. He is the acting Rural Station Commander at Kubalia, Yangoru Sausia District. He gave evidence for the Plaintiff. He was the investigating officer of the road accident. He arrived at the scene of the accident on the day of accident, and noticed the collision involving two vehicles, owned by the parties in these proceedings. He said he took measurements and did a sketch map. He also spoke to the drivers, and other witnesses. He was of the view that, the driver of the Defendant, Robin Kuravit was negligent in the manner of his driving, which caused his vehicle to collide with the Plaintiff’s vehicle. He compiled a Road Accident Report. He charged the Defendant’s driver, with driving without due care and attention and was subsequently convicted.
Chris Yangion
19. Chris Yangion is a policeman, a Senior Constable in rank and based at the Wewak Police Station. He gave evidence for the Plaintiff. He was the crew of the Defendants vehicle, Robin Kuravit drove. He was escorting the Defendant’s driver together with the Defendant’s second escort vehicle. He said they were travelling from the direction of Wewak towards Maprik along the Sepik Highway. There was some rain and some parts of the road was slippery. As they approached Tangori village, they had this accident. Prior to the accident, he noticed the driver, Robin Kuravit, was speeding along the highway at the rate of 80km per hour. He told the driver 3 times earlier to slow down but the driver did not take heed to his warnings. As they drove down a slope, the Defendant’s driver was still on high speed. Their vehicle was travelling behind the other escort vehicle which was travelling ahead of them. The first vehicle slowed down almost to a stop when approaching a pothole. Due to the high speed, the driver Robin Kuravit who was travelling behind lost control when trying to avoid hitting their vehicle upfront, left his lane and drove more to the right, occupying the lane of the Plaintiff’s vehicle which was coming from the opposite direction. The Plaintiff’s vehicle was on his correct lane. As a result, he hit the Plaintiff’s vehicle, with force and caused the Plaintiff’s vehicle to go off the road sustaining extensive damage. He also gave evidence that the Defendant driver Robin Kuravit was charged with careless driving and was convicted accordingly.
Joseph Poma
20. Joseph Poma is a Senior Policeman with the rank of Chief Superintendent and is currently the ACP in charge of Traffic. He gave evidence for the Plaintiff. He said in 2013, he was the Provincial Police Commander for East Sepik Province. He had entered into an arrangement with the Plaintiff to hire his vehicle for a period of three (3) years at the rate of K850.00 per day. The hire was to commence on 1st February 2013. He said he could not proceed with the deal due to the accident involving the Plaintiff’s vehicle. He said had it not been for the accident, the Police Department would have hired the Plaintiff’s vehicle for the duration of his employment as Provincial Police Commander in Wewak.
Submissions
21. Mr Murray, Counsel for the Plaintiff, submitted there is overwhelming evidence that the accident was caused by the negligence of Robin Kuravit, the employed driver of the Defendant. The Defendant’s driver was convicted for driving without due care and attention. Mr Murray submitted that the Plaintiff has proven liability on the balance of probabilities. As for quantum, Mr Murray submitted that the Plaintiff is entitled to the following heads of damages:
22. Ms Maburau, Counsel for Defendant submitted that the Defendant’s driver was not negligent in the manner of his driving. She submitted that the Defendant’s driver reacted to the sudden stop by the vehicle in front. She submitted, driving at 80 km per hour on the Sepik Highway is permissible. In respect of the conviction, Ms Maburau submitted that the driver freely pleaded guilty and the conviction does not necessarily prove that he was negligent.
23. In respect of damages, Ms Maburau submitted, the Plaintiff is not entitled to all the heads of damages claimed except for the value of the vehicle based on the pre-accident value with further deductions for depreciation.
Part A: Liability
24. The issue of liability will be decided first. Has the Plaintiff proven liability on the balance of probabilities.? The evidence on liability was given by Chris Yangon and Tobias Miamba. Chris Yangon is a Senior Policeman, who has been in the Police force for many years. He was cross-examined at length. I find his evidence credible, consistent and truthful.
25. The evidence shows, the Defendants driver was driving on high speed down a slope, on a rainy and slippery day. He was driving behind another escort vehicle ahead of him. When the vehicle in front stopped when approaching a pot hole, the Defendant’s driver lost control because of the high speed. The evidence shows he was driving at the rate of 80km per hour. In order to avoid hitting the vehicle up front he drove to the far right and then back again and lost control and collided with the Plaintiff’s vehicle, which was coming on the opposite direction.
26. The Defendant driver was then charged with driving without due care and attention and was convicted by the District Court. This evidence is confirmed by Tobias Miamba, the Police Investigating Officer. He attached to his affidavit a Police accident report, which shows the details of his investigation. Constable Miamba’s oral evidence is consistent with the Police Accident Report he prepared seven years ago in the normal course of his duties. The report provides details of the motor vehicles, the date of accident, the details of drivers, and the investigator’s description of the accident. He attaches to his affidavit, a sketch map, and photograph of the motor vehicle.
27. I find the evidence of Tobias Miamba logical, consistent and credible. The evidence was not discredited during cross-examination.
28. I have no doubt, that the accident was caused by the negligent driving of Robin Kuravit, the employed driver of the Defendant. I find, the Defendant’s driver was on high speed, and failed to slow down when driving down a slope riddled with pot holes. He failed to take appropriate steps to avoid placing himself too close to a vehicle travelling up front. He failed to have regard for other users of the road, especially those including the Plaintiff’s vehicle coming in the opposite direction. I also accept the evidence of conviction by the District Court as corroborative to the evidence produced by the witnesses that the Defendant’s driver was indeed guilty of driving without due care and attention. I find vicarious liability has been proved against the Defendant on the balance of probabilities.
Part B: Damages
29. The second issue to be decided is whether the Plaintiff is entitled to damages as claimed under each head of Damages. The Plaintiff claims the following heads of damages.
f) Interest and costs
30. The law on assessment of damages is settled. In his book Assessment of Damages for Personal Injury and Death, Third Edition, Harold Luntz said this on Compensatory principle. “The fundamental principle which underlies the whole law of damages, in whatever area damages are awarded, is the principle of compensation. This means that the damages to be recovered are in money terms no more and no less than the plaintiff’s actual loss. The classic, and much quoted, formulation of the principle appears in Livingstone v Rawyards Coa Co [1880] UKHL 3; (1880) 5 App Cas 25 (HL) where Lord Blackburn said: “where any injury is to be compensated by damages, in settling the sum of money to be given for...damages you should as nearly as possible get at 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 in if he had not sustained the wrong for which he is now getting his compensation...”.”
Applying and adopting these principles, I will consider each head of damages to arrive at a just compensation award.
31. The evidence shows the Plaintiff purchased vehicle, a brand-new vehicle, Toyota 5 Door from Ela Motors on 14th March 2012 at the purchase price of K138,955.00. The vehicle was on the road for about 10 months before the accident. It is relatively a new vehicle. The quotation for repairs prepared by Ela Motors shows it would cost more from K67,000 for repairs and was therefore written off. The pre-accident value of the vehicle at the time was assessed at K101,058.18 by Ela Motors Wewak.
32. The Plaintiff submits that the Court make an order for the Defendant to purchase a replacement vehicle of the similar make and model with accessories. In the alternative, the Plaintiff submits that the Court award the sum of K101,058.18 being for the pre-accident value of the Plaintiffs vehicle. Ms Maburau submitted that the vehicle is repairable, and is not a total loss. Ms Maburau for the Plaintiff submits further that the vehicle was used for 9-10 months. It has depreciated in value. She submitted that the court considers a lesser sum than K101,058.18.
33. In respect of the repairs, I am not convinced that the vehicle would have been restored completely to the state it was. It was a brand-new vehicle, about 10 months old. It suffered extensive damage and was traumatised. It would be unreasonable to suggest that the Plaintiff would have gotten good or the same value if the vehicle was repaired. This is because it is susceptible to wear and tear faster than it is without the trauma.
34. In my view the most logical and fair award is for the Plaintiff to be awarded a sum of money that is reasonable and supported by evidence. The evidence shows the pre-accident value was K101,058.18. It came from Ela Motors, the dealers of the brand, make and model. I am prepared to accept this amount as reasonable and would award same. Even if I am wrong about this, when one applies the normal conventional depreciation rate of say at 25%, per annum, you will arrive at K104,216.25 after allowing for the 9-10 months usage. For these reasons, I assess and award the sum of K101,058.18 for the loss of the motor vehicle.
35. The Plaintiff claims economic loss at the daily rate of K850 for 3 years. This amounts to a sum around K900,000.00. The claim is made on the basis that there were arrangements in place for the Police Department to hire the Plaintiff’s vehicle for 3 years at the daily rate of K850.00 commencing 1st February 2013. The Plaintiff submitted that had it not been for the accident, he would have earned that income.
36. I have considered the evidence and submissions of Counsel. In my view, the claim is speculative. There is no evidence of contract for hire. These were discussions only, and no legally binding contract has been executed for hire.
37. I will also reject the claim for economic loss for a second reason. The Plaintiff has not proved that 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. Refer: Graham Mappa v PNG Electricity Commission (1995) PNGLR 170, Komaip Trading v George Waugluo & The State and Kekeral Farming v Queeensland Insurance (1995) PNGLR 4058. 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.”
38. 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 the Plaintiff has not established a claim for economic loss. I will make no award for economic loss.
General damages for Hardship and Frustration
39. The Plaintiff claims damages for pain, suffering, hardship and anxiety. Counsel for the Plaintiff submits for a sum of K50,000.00 as a reasonable sum. 40. I accept that the Plaintiff has been inconvenienced by the loss of use of his vehicle. However, the Plaintiff has not provided specific details of any suffering apart from the damage to the vehicle, the subject of these proceedings. The Plaintiff has been granted the main part of the substantive claim and is therefore not entitled to any award under this head of damages. The delay in getting his claim resolved can be compensated through cost and interest. For these reasons, no award shall be made under this head.
Out of Pocket Expenses
41. The Plaintiff made a claim for out of Pocket expenses in the Amended Writ of Summons. However, the Plaintiff did not plead particulars of special damages. On the issue of pleadings, the Supreme Court settled the law in the case, Papua New Guinea Banking Corporation v Tole (2002) SC694. The court said:
” First Two Issues – Pleadings
The first two issues are closely related. They involve the issue of pleadings so they are being dealt with together. The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed. This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The list of such cases is long but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only.
This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:
"1. they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;
It is clear law that, where a plaintiff’s claim is special in nature, such as a claim for loss of salaries or wages, they must
be specifically pleaded with particulars. Unless that is done, no evidence of matters not pleaded can be allowed and relief granted.
That is apparent from the judgements in the James Pupune and John Etape cases. These cases adopted and applied principles enunciated
in those terms in authorities such as Ilkiw v. Samuel [1963] 2 All ER 879, per Diplock L J at pp. 980-891 and Pilato v. Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364, per McClemens J at 365. This follows in turn from the fact that, our system of justice is not one of surprises but one of fair play.
Reasonable opportunity must be given to each other by the parties to an action to ascertain fully the nature of the other’s
case so that, if need be, a defendant can make a payment into Court.”
Secondly, the Plaintiff has not provided evidence for any out of pocket expenses.
42. For these reasons, I will not make any award under this head of damages. I am mindful that any cost that are necessarily incurred in pursuing this matter in court shall be recovered in a claim for cost of the proceedings.
Interest
43. The Plaintiff is claiming interest at 8% to commence from the date of cause of action. Defence counsel submitted, interest is a matter for Court’s discretion. I am inclined to award interest at 8%. However, should interest commence from date of cause of action as claimed by the Plaintiff or from the date of commencement of proceedings.? Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act 1962, provides and I quote:
”1. INTEREST ON CERTAIN DEBTS AND DAMAGES.
(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgement is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgement.
(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection
shall not exceed 8% yearly.”
44. This provision gives the Court the discretion to decide on the rate and the time for commencement of the interest. This
discretion must be exercised on proper principles. In the present case the Plaintiff lost the immediate use of his vehicle from
date of accident. The evidence is clear that the Defendant’s employed driver was negligent in the manner of his driving.
45. The driver was found guilty of negligent driving. The vehicle was a new vehicle. A claim for replacement was sent to the Defendant. The Defendant made no attempt at all to settle. The Plaintiff has suffered frustration for the use of his vehicle for the last seven (7) years. In the premises, I will allow interest at 8% to run from the date of the cause of action to the date of Judgment.
46. Interest is awarded at 8% on K101,058.18 from 23rd January 2013 (the date of cause of action) to 20th November 2020 (being the date of Judgment), which is a period of 249 days. It is calculated as follows:
K101,058.18 x 8% = K 8,084.65 per annum
K 8,084.65/365 days = K 22.15 per day
K 22.15 x 249 days = K55,175.65
47. The total amount for interest is K55,175.65 and the total award shall be K156,233.83.
48. Post Judgment interest shall accrue at 8% after 30 days from date of order.
Cost
49. The Plaintiff claims cost of the proceedings. I will allow cost.
Orders
_______________________________________________________________
Murray & Associate Lawyers: Lawyers for the Plaintiff
In House Lawyers : Lawyer for the Defendants
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