Samot v Yame [2020] PGNC 63; N8256 (17 March 2020)

N8256

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.290 OF 2015

BETWEEN:
JOHANNES SAMOT
Plaintiff

AND:
GEORGE YAME
First Defendant

AND:
CONCRETE AGGREGATE PNG
Second Defendant

Waigani: David, J
2020: 9^th, 12^th & 17^th March

CLAIM IN TORT – negligence – motor vehicle accident – accident involving public motor vehicle and company motor vehicle – driver of company motor vehicle convicted by District Court for driving on a public street without due care and attention contrary to Section 17(2), Motor Traffic Act – a natural inference arises that the convicted driver was negligent – evidentiary burden then cast upon defendants to rebut the inference – no rebuttal evidence adduced by defendants – company driver negligent – company vicariously liable for actions and or inactions of its driver - liability established after trial.

ASSESSMENT OF DAMAGES – general and special damages and incidentals.
Cases Cited:
Papua New Guinea Cases

Abel Kopen v The State (1988-89) PNGLR 659
Andrew Moka v MVIL (2004) SC729
Aundik Kupil v The State (1983) PNGLR 350
Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562
Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24
Director of the Independent Public Business Corporation of Papua New Guinea (2011) N4363
Fred Angoman & Papaco No.1 Limited v Independent Public Business Corporation of Papua New Guinea & Glen Blake as the Managing
Daniel Occungar v Luke Kiliso (2010) N4102
Graham Mappa v PNG Electricity Commission (1995) PNGLR 170
Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128
Helen Jimmy v Paul Rookes (2012) N4705
Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367
Jonathan Mangope Paraia v The State (1995) N1343
Likui Trading Ltd v Joseph Selna (2011) N4530
Paul Perex v PNG Institute of Medical Research (2014) N5614
Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102
Peter Na’al v Michael Debege (2000) N1958
Philip Kunnga v The Independent State of Papua New Guinea (2004) N2689
Philip Nare v The State (2017) SC1584
Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409
Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485
Roka Coffee Estate Pty Ltd v Gerebi (1973) PNGLR 486
Steven Naki v AGC (Pacific) Ltd (2006) N5015
Wango v Andakundi and the State (1992) PNGLR 45
William Mel v Coleman Pakalia (2005) SC790

Overseas Cases

Donoghue v Stevenson [1932] AC 562
Livingstone v Rawyards Coal Co, (1880) App Cas 25

Counsel:

Grace Makap, for the Plaintiff
Emily Dauma, for the Defendant

JUDGMENT

17^th March, 2020

1. DAVID J: INTRODUCTION: This is a decision on a claim launched in the tort of negligence by writ of summons endorsed with a statement of claim filed on 19 March 2015 which was subsequently amended, after a trial. Two motor vehicles, one a Toyota Coaster bus bearing registration number P205D used as a Public Motor Vehicle (PMV bus) and owned by the plaintiff and a Hino truck bearing registration number CAY 804 (Hino truck) owned by the second defendant were involved in an accident in Port Moresby, National Capital District on 29 November 2013. The PMV bus was driven by the plaintiff’s driver namely, John Keek while the Hino truck was driven by the second defendant’s driver namely, the first defendant, George Yame. The plaintiff claims damages as a result of the accident. In the defence filed on 21 June 2016, the defendants deny liability as they aver that the first defendant was not negligent.

EVIDENCE

2. The plaintiff’s case is supported by his own affidavit which was sworn on 19 October 2015 and filed on 2 February 2016 (Exhibit A) and his oral sworn testimony. The plaintiff was subjected to a brief cross-examination.

3. An affidavit from the driver of the PMV bus namely, John Keek that was intended to be relied on as well was rejected on the objection of the defendants as he was not produced for cross-examination as requested by written notice of the defendants under Section 36 of the Evidence Act. The plaintiff had asserted by affidavit that Mr. Keek, since the accident, is now deceased having got the relevant information recently from Mr Keek’s relatives. The Court ruled that the plaintiff’s evidence was hearsay so there was no proof of death either by medical or other documentary evidence or direct and convincing oral evidence.

4. During examination in chief, two documents pertaining to ownership and registration of the PMV bus sourced from Motor Vehicles Insurance Limited were tendered and admitted into evidence without objection. The vehicle summary dated 6 June 2020 was marked as exhibit B1 and the Certificate of CTP Insurance Policy & Registration issued on 23 October 2015 was marked as exhibit B2.
5. The defendants gave notice under Section 35(1) of the Evidence Act to rely on two affidavits of Armon Kununke one filed on 17 February 2016 and the other filed on 1 November 2017. Both affidavits were objected to by the plaintiff’s counsel, Ms. Makap as the witness was not present and the plaintiff had given written notice objecting to the use of one of the affidavits under Section 35(2) of the Evidence Act. Ms. Dauma of counsel for the defendants insisted on using the affidavit that had the written objection against its use and elected not to rely on the other. In the exercise of the Court’s discretion applying the relevant principle in Philip Kunnga v The Independent State of Papua New Guinea (2004) N2689 that since the plaintiff gave notice under Section 35(2), that was something that militated against the use of the relevant affidavit, the objection was upheld.

RELIEF CLAIMED
6. In the statement of claim, the plaintiff claims the following relief:

1. General damages in the sum of K50,000.00 including stress and difficulty caused by the accident;
   2. Special damages in the sum of K78,325.00 comprising; K45,000.00 for loss of expected business income; K31,235.00 for parts and cost of repair; and K2,000.00 for incidentals.
3. Interest at 8% pursuant to the Judicial Proceedings (Interest on Debts & Damages) Act; and
4. Costs of the proceedings.
   

SUMMARY OF PLAINTIFF’S EVIDENCE

7. The plaintiff is the registered owner of the PMV bus bearing registration number P205D: see annexures B1 and B2 of exhibit A, copies of the vehicle summary and Certificate of CTP Insurance Policy & Registration and annexure D to Exhibit A, Road Accident Report.

8. On or about 5 March 2013, the plaintiff obtained a loan of K120,000.00 from Bank of South Pacific Limited to purchase the PMV bus. Annexure A to Exhibit A is a copy of the letter of approval from the Bank of South Pacific Limited dated 5 March 2013 and Customer Loan Details and Statement of Position. Under the loan agreement, he was required to pay off the loan by fortnightly payments of K1,516.00 over a period of four years from the date of draw down.

9. He operated the PMV bus along Route 16 between Nine Mile and Gordon’s in Port Moresby. The PMV bus was driven by Mr. Keek and his boss crew was Wanpis Imbu.

10. The second defendant is the owner of the Hino truck bearing registration number CAY 804: see annexure D to Exhibit A, Road Accident Report.

11. The PMV bus driven by Mr. Keek and the Hino truck driven by the first defendant, an employee of the second defendant, were involved in an accident at a roundabout situated along the junction of Geauta Drive and the Hubert Murray Highway on 29 November 2013 at about 11:45 am: see annexure C, Accident Site Sketch and annexure D to Exhibit A, Road Accident Report.

12. The PMV bus was travelling along Geauta Drive in the direction of Gordons while the Hino truck was travelling along the Hubert Murray Highway in the direction of Erima. see annexure C, Accident Site Sketch and annexure D to Exhibit A, Road Accident Report.

13. Extensive damage was caused to the front left and forward left side of the PMV bus: see annexure C, 3 Photographs of the PMV bus and annexure D to Exhibit A, Road Accident Report.

14. Police attended the accident scene, conducted their investigation and compiled a Road Accident Report: Annexure D to Exhibit A, Road Accident Report.

15. He is not an eye-witness to the accident.

16. The first defendant was charged under Section 17(2) of the Motor Traffic Act for driving upon a public street without due care and attention.

17. On 3 December 2013, the Waigani Traffic District Court found him guilty as charged and fined him K300.00. Annexure F to exhibit A is a copy of the order of the Waigani Traffic District Court dated 12 February 2014.

18. Written requests from the plaintiff himself and his lawyers, Thomas & Co. and to the second defendant and its lawyers to settle the plaintiff’s claim amicably out of court were not been successful. Annexure E are copies of relevant letters to the second defendant and its lawyers from the plaintiff himself and his lawyers. The plaintiff also engaged Greg Manda Lawyers to pursue his claim to a settlement out of court, but they were also unsuccessful. Nelson Lawyers, by their letter to Thomas & Co. dated 12 March 2014, advised that their client would not settle the plaintiff’s claim relying on the principle enunciated in Aundik Kupil v The State (1983) PNGLR 350.

19. Since the second defendant denied liability and refused to pay for the costs of the damage to the PMV bus, he used a substantial amount of his own personal money to purchase parts, repair the PMV bus and eventually put it back on the road. Annexure H to exhibit A are copies of invoices, receipts and repair quotations from various panel shops in Port Moresby.

20. The PMV bus generated a daily income of K500.00 for him. He used the income to pay his loan, the driver, boss crew and saved the surplus. Annexure B to exhibit A are true copies 2 pages of Loan Enquiry (History Select) issued by Bank of South Pacific dated 3 December 3013. They show four payments of K1,566.00 and two payments of K1,666.00 made between 18 September 2013 and 27 November 2013.

21. The PMV bus did not operate for one month since the accident. As it did not generate income during that period, the loan fell into arrears and incurred interest on the arrears. In the circumstances, he used his own personal money to alleviate the situation by continuing to pay the loan. Annexed to exhibit A are copies of 3 pages of Loan Enquiry (History Select) issued by Bank of South Pacific dated 3 December 3013. They show that a further payment of K1,666.00 was made on 11 December 2013.

FINDINGS OF FACT

22. From the plaintiff’s evidence, I find that the following principle facts are either not disputed or have been established on the balance of probabilities:

1. The plaintiff is the registered owner of the PMV bus.
2. On or about 5 March 2013, the plaintiff obtained a loan of K120,000.00 from Bank of South Pacific Limited to purchase the PMV bus.
3. Under the loan agreement, the plaintiff was required to pay off the loan by fortnightly payments of K1,516.00 over a period of four years from the date of draw down.
4. The plaintiff operated the PMV bus along Route 16 between Nine Mile and Gordon’s in Port Moresby.
5. The driver of the PMV bus was Mr. Keek and boss crew Wanpis Imbu.
6. The first defendant was employed by the second defendant.
7. The second defendant is the owner of the Hino truck.
8. The PMV bus driven by Mr. Keek and the Hino truck driven by the first defendant were involved in an accident at a roundabout situated along the junction of Geauta Drive and the Hubert Murray Highway on 29 November 2013 at about 11:45 am.
9. At the time of the accident, the PMV bus was being driven in the direction of Gordon’s while the Hino truck was being driven in the direction of Erima.
10. The plaintiff was not an eye witness to the accident.
11. Extensive damage was caused to the front left and forward left side of the PMV bus.
12. The first defendant was charged under Section 17(2) of the Motor Traffic Act for driving upon a public street without due care and attention.
13. On 3 December 2013, the Waigani Traffic District Court found the first defendant guilty and fined him K300.00.
14. As a consequence of the accident, the PMV bus was off the road for a month until repaired and could not generate income during that time.
15. The plaintiff continued to pay the loan during the period that the PMV bus was off the road.
16. Despite the plaintiff’s attempts to settle his claim out of court, the defendants have denied liability.
    

DISPUTED FACTS

23. From all the evidence before the Court, I find that the main disputed facts are:

1. the first defendant drove the Hino truck negligently;
2. the second defendant is vicariously liable for the actions or omissions of the first defendant; and
3. the plaintiff is entitled to damages as the damage suffered by the plaintiff was due to the actions or omissions of the second defendant’s driver.
   

LEGAL ISSUES

24. The main legal issues that require my decision are:

1. Whether the first defendant drove the Hino truck negligently to cause the accident?
2. If so, whether the second defendant is vicariously liable for the actions or omissions of the first defendant?
3. If the defendants are liable, what are the plaintiff’s damages?
   

LAW OF NEGLIGENCE

25. In the landmark case of Donoghue v Stevenson [1932] AC 562, Lord Atkin set the foundation of the modern law of negligence when he propounded the “neighbour test” as the basis for when a duty of care is owed. Lord Atkin at p.580 said:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

26. At Independence, Papua New Guinea adopted the common law of negligence, i.e. a driver owes a duty of care to other road users including motor traffic; pedestrians and passengers, which forms part of our underlying law: Donoghue v Stevenson (1932) AC 562; Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409, Andrew Moka v MVIL (2004) SC729, Daniel Occungar v Luke Kiliso (2010) N4102, Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562, Paul Perex v PNG Institute of Medical Research (2014) N5614. The standard of care attributed to a driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver: Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409, Andrew Moka v MVIL (2004) SC729, Daniel Occungar v Luke Kiliso (2010) N4102. Once he breaches that duty of care, he is liable in damages for negligence.

27. Thus, to establish a cause of action in negligence, the essential elements that must be proved by a claimant or plaintiff are:
    
    1. The defendant owed a duty of care to the plaintiff;
    2. The defendant breached that duty;
    3. The breach of duty caused injury to the plaintiff; and
    4. The type of injury was not too remote.
       

NEGLIGENCE OF FIRST DEFENDANT
Plaintiff’s submissions

28. Ms Makap of counsel for the plaintiff contended that the first defendant’s negligent driving of the Hino truck caused the collision between that vehicle and the PMV bus. She argued that the first defendant as a driver using a public road at the material time owed a duty of care to the general public, other road users and the plaintiff whose vehicle was being driven on the public road by his driver Mr Keek. The duty of care was to drive the Hino truck with due care and attention to other road users and not to be reckless. Counsel drew the Court’s attention to Section 137(9) of the Motor Traffic Regulation which states that when two motor vehicles are approaching an intersection or junction, the driver of the vehicle having the other on its right must give way to the other vehicle.

29. It was submitted that in the present case, the plaintiff’s driver had the right of way because he was driving on the right side of the first defendant. The first defendant did not give way so that resulted in the collision. That is confirmed by the Road Traffic Report.

30. In addition, it was contended that while at paragraph 8 of the defendants’ defence, it was pleaded that the Hino truck was already in motion and proceeding into the roundabout when the PMV bus collided into it, the second defendant had failed to plead that the first defendant had slowed down when approaching the junction to see if there were other vehicles approaching the roundabout from his right side. If he had done so, he would have noticed the PMV bus approaching on his right side and would have given way, but did not. The actions or omissions of the first defendant was clearly contrary to the Motor Traffic Regulations.

31. Moreover, the first defendant was charged and convicted by the District Court for driving without due care and attention on a public road contrary to Section 17(2) of the Motor Traffic Act. The inference to be drawn from the conviction was that the first defendant was negligent and it was incumbent upon the defendants to adduce evidence to rebut the inference. The defendants have failed to adduce evidence to rebut the inference so the inference of negligence on the part of the first defendant stands as it remains unchallenged.

Defendants’ submissions

32. Ms. Dauma of counsel for the defendants contends that the plaintiff has failed to prove on the balance of probabilities that first defendant was negligent. There was no corroborating evidence to support the plaintiff’s case. The failure to call evidence from Mr Keek, the driver of the PMV bus was fatal, it was submitted. In the alternative, it was submitted that the plaintiff’s driver was guilty of contributory negligence.

Reasons for decision

33. The law relating to reliance and weight to be given on criminal convictions in civil claims arising from same facts as those considered by the court which convicted the person is settled in this jurisdiction.

34. Proof of a defendant’s conviction of a traffic offence in earlier criminal proceedings does not relieve a plaintiff in subsequent civil proceedings of the onus of proving that the defendant drove negligently: Aundik Kupil v The State (1983) PNGLR 350, Helen Jimmy v Paul Rookes (2012) N4705. Proof of conviction is one thing and the proof of the elements of a cause of action in subsequent civil proceedings relating to the same events that led to the conviction is another: Helen Jimmy v Paul Rookes (2012) N4705.

35. As to what weight, if any, should be attached to evidence of a conviction, in Helen Jimmy v Paul Rookes (2012) N4705 Cannings, J at paragraphs 10 and 11 observed:

The common law position, represented by Hollington v Hewthorn [1943] 1 KB 587, was that evidence of a criminal conviction is not admissible in subsequent civil proceedings to prove any facts on which the conviction was based. So evidence of a prior conviction carried no weight at all, as it was not even admissible. That strict position is not applicable in PNG, as noted by Bredmeyer J in Aundik Kupil v The State [1983] PNGLR 350, because Section 47 of the Evidence Act abolishes a large part of the rule in Hollington v Hewthorn. However, Section 47 still does not relieve a plaintiff in subsequent proceedings of the onus of proving the case. Caution must be exercised in dealing with prior convictions, as shown by the decisions of the Supreme Court (Woods J, Hinchliffe J, Brown J) in John Kaina v The State [1990] PNGLR 292 and the National Court (Lay J) in WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003 and Wamena Trading Limited v Civil Aviation Authority (2006) N3058.

In my view the weight to be attached to evidence of conviction of a driver for a traffic offence in subsequent civil proceedings that relate to the same facts as those considered by the court which convicted the driver, is this: a natural inference arises that the driver was negligent (Anis v Taksey (2011) N4468, Omonon v Kuanga (2012) N4686). An evidentiary burden is then cast upon the defendant to adduce evidence to rebut that inference. This approach has been propounded in a number of British decisions which expressed disapproval of the rule in Hollington v Hewthorn, eg Goody v Oldham’s Press Ltd [1967] 1 QB 333, Barclays Bank v Cole [1967] 2 WLR 166, Stupple v Royal Insurance Co Ltd [1971] 1 QB 50, McIlkenny v Chief Constable [1980] 2 All ER 227. The legal burden of proving the case does not shift from the plaintiff but common sense dictates that the defendant needs to bring evidence to throw doubt on the correctness of the conviction.

36. I adopt His Honour’s observations and apply them here.

37. While the first defendant’s conviction was not for driving on a public street negligently under Section 17(1) of the Motor Traffic Act, his conviction imputed fault upon him as the perpetrator behind the accident. Therefore, the inference to be drawn from the plaintiff’s evidence of a prior criminal conviction against the first defendant for driving on a public street without due care and attention that the first defendant was negligent remains unchallenged without any rebuttal evidence from the defendants.

38. In addition, while no direct evidence about the accident has been given by the plaintiff’s driver or the first defendant or any eye witness, the plaintiff’s evidence through the Police Road Accident Report, the photographs showing damage on the front left and left side of the PMV bus and the sketch of the accident scene is sufficient. They show that the PMV bus which was approaching the roundabout at the junction of Geauta Drive and Hubert Murray Highway while travelling in the direction of Gordon’s had the right of way as it was on the right side of the Hino truck. The Hino truck did not give way and proceeded onto the roundabout contrary to Section 137(9) of the Motor Traffic Regulation causing the collision.

39. There is no other evidence to support the defendants’ submission that the PMV bus driver, Mr. Keek was guilty of contributory negligence.

40. I am satisfied on the balance of probabilities that the plaintiff has established all elements of the tort of negligence against the first defendant, the driver of the Hino truck. The first defendant driver owed a duty of care to other road users such as the PMV bus owned by the plaintiff and driven by Mr. Keek. The first defendant drove the PMV bus negligently and caused the collision which led to extensive damage caused to the PMV bus and loss of business which are not of a type that are too remote, but a direct result of the failure by the first defendant to take reasonable care. Did the first defendant drive the Hino truck negligently to cause the accident with the PMV bus? Yes.

VICARIOUS LIABILITY
Plaintiff’s submissions

41. Ms. Makap for the plaintiff contended that the second defendant is vicariously liable for the negligence of the first defendant as at the material time, the first defendant was employed by the second defendant and the accident was caused in the course of the first defendant’s employment.

Defendants’ submissions

42. Ms Dauma argued that the second defendant will be vicariously liable only if it is proved that the first defendant was negligent.

Reasons for decision

43. For an employer to be vicariously liable for the actions or omissions of his employee, the Supreme Court in Philip Nare v The State (2017) SC1584 said that it is sufficient that, on the balance of probabilities; the perpetrator of the tort was an employee or agent of the alleged employer and was acting in the course of his or her employment: see also Roka Coffee Estate Pty Ltd v Gerebi (1973) PNGLR 486, Wango v Andakundi and the State (1992) PNGLR 45.

44. The defendants in their submissions do not seriously dispute the fact that the first defendant was an employee of the second defendant at the time the accident occurred. In fact, there was no evidence to the contrary. I am satisfied that the second defendant is vicariously liable for the tortious act or omission of the first defendant who drove the Hino truck in the course of his employment.

DAMAGES

45. Having found that the first defendant drove the Hino truck negligently causing the collision with the PMV bus and that the second defendant is vicariously liable for the first defendant’s actions or omissions, what are the plaintiff’s damages? The defendants’ position has been that no damages be awarded if liability were not established.

Legal principles

46. 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.)
  

47. I will apply these principles when considering each head of damages sought by the plaintiff.

Stress and difficulty

48. It is submitted that an award of K50,000.00 is appropriate as:

4. the plaintiff was forced to repay the remaining loan of K103,987.40 as a result of the accident caused by the negligent action or omission of the first defendant;
5. the plaintiff repaired the PMV bus with his own money;
6. the second defendant made no effort to assist the plaintiff even after several requests were made.
   

49. Damages for distress, frustration, vexation, injured feelings, hardship, etc, are part of general damages: Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128; Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367. I agree that damages should be awarded to compensate the plaintiff for the anxiety, distress, stress and hardship caused to him by the first defendant’s negligence which caused the collision and the subsequent losses incurred: PNGLR 303; Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128. It is clear from the plaintiff’s own evidence that; the PMV bus suffered extensive damage to its front left and side as the photographs show; the plaintiff repaired the PMV bus himself without the assistance of the second defendant despite requesting it several times to meet the cost; the PMV bus was off the road and not generating income during that time; the plaintiff had to meet his loan obligations while the PMV bus was off the road not generating income.

50. In Harding v Teperoi Timbers Pty Ltd at 132, Kidu, CJ said if a contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. There, a nominal amount of K1,000.00 was awarded as damages for distress, frustration and general disappointment.

51. In Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367, a nominal amount of K1,000.00 was awarded as damages for frustration, distress and/or disappointment following a breach of contract for employment.

52. In Peter Na’al v Michael Debege (2000) N1958, an amount of K15,000.00 was awarded for distress, frustration and disappointment arising from a breach of contract of employment and terms of scholarship while on studies in Australia.

53. In Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102, the Court awarded K20,000.00 as damages for distress, frustration and hardship following the plaintiff’s unlawful termination of his employment contract.

54. In Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485, damages of K50,000.00 was awarded for distress, frustration and inconvenience arising from a breach of a management agreement under which the plaintiff was to manage the defendant’s affairs, particularly regarding a timber and marketing agreement it had with another company.

55. In Likui Trading Ltd v Joseph Selna (2011) N4530, the National Court awarded damages of K15,000.00 for hardship, inconvenience, anxiety and distress arising from a breach of a rental agreement.

56. In Fred Angoman & Papaco No.1 Limited v Independent Public Business Corporation of Papua New Guinea & Glen Blake as the Managing Director of the Independent Public Business Corporation of Papua New Guinea (2011) N4363, the plaintiff sued the defendants, for breach of a contract of sale of land relating to a property at Boroko and sought specific performance of the contract which had been executed between the second plaintiff and Investment Corporation of Papua New Guinea, the registered proprietor, 10% deposit paid, stamp duty requirements met and statutory approval for the conveyance obtained or in the alternative damages. The sale was not completed due to issues surrounding outstanding water rates. While awaiting completion, the property became vested firstly, in the Privatisation Commission pursuant to the Privatisation Act 1999 and later in the first defendant, Independent Public Business Corporation of Papua New Guinea, following the repeal of the Privatisation Act 1999 and the enactment of the Independent Public Business Corporation Act 2002. The second defendant refused to complete the sale. The property was placed on public tender for sale. Kariko, J awarded K5,000.00 having found that the plaintiffs suffered some stress and anxiety while following up the sale initially with Investment Corporation of Papua New Guinea and later with its successors.

57. I agree with the plaintiff’s submission that he is entitled to damages for the stress, depression, anxiety and hardship he suffered as a result of the PMV bus being involved in an accident due to the negligent driving of the first defendant which caused the accident and the losses he incurred subsequently.

58. I have considered the comparable awards and am of the opinion that an award of a sum of K6,000.00 is reasonable in the circumstances of this case. I will therefore allow K6,000.00 for this head of damages claimed.

Loss of income

59. The plaintiff claims K45,000.00 for loss of income. It was contended by Ms Makap that the PMV bus generated an income of K500.00 daily so in a fortnight he would have earned K7,000.00. From the money earned, the loan was serviced, the driver and boss crew were paid and the surplus saved. It was submitted that the PMV bus was off the road for 90 days when it would have generated a total income of K45,000.00.

60. It was submitted that while there was no evidence of audited business accounts of the operations of the PMV bus, there was evidence that the plaintiff was operating the PMV bus when the collision occurred. In the circumstances, the Court should do the best it can on the evidence that is available and award the full amount claimed of K45,000.00
61. It is a well settled principle of law in this jurisdiction that 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 sufficiently reasonable to repair the asset: Abel Kopen v The State (1988-89) PNGLR 659. The plaintiff’s duty to mitigate his loss requires him to take appropriate steps to get the repairs done efficiently and without unreasonable delay: Abel Kopen v The State (1988-89) PNGLR 659.

62. The plaintiff has failed to adduce independent corroborative evidence such as financial statements or audited accounts from accountants supported by bank statements or other business records which would show income generated and liabilities incurred by the business to prove his claim for loss of income of K45,000.00.

63. The owners of PMV business and trade stores operated by simple Papua New Guineans are required to keep records of their business including appropriate tax returns and produce them in evidence to support a claim for loss of income or profit from such operations. The decision in Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 demonstrates that position.

64. In Graham Mappa v PNG Electricity Commission (1995) PNGLR 170, following an award of K7,800.00 in damages by the National Court in a claim for damages for loss of income following damage caused to the plaintiff’s Isuzu 25-seater bus when it was involved in a collision with the defendant’s vehicle, the defendant appealed to the Supreme Court against the award. In allowing the appeal, the Supreme Court found that the appellant did not establish his damages by the calling of sufficient evidence. The only evidence led by the plaintiff was a statement that his business earned K1,200.00 per week. The Supreme Court found that there was no documentary evidence such as bank records, tax returns or balance sheets or other evidence to support his claim apart from some comparison with another similar business run by someone else. Woods J. at 171 summarised the position in the following terms:

“[I]f you wish to establish matters like loss of profits from the operation of a modern business, then it is necessary to comply with the modern law, for example, producing such records as are required by the law. If you wish to have the advantages of a modern world of business, then you must comply with modern matters like tax laws. This would require appropriate business records to show whether any profit over and above business running costs was earned. And then, if a profit was earned, there are the requirements to pay taxes. The courts have been referring to these requirements in recent years, especially in the operation of shop or trade store businesses. And the Supreme Court, by its ruling, is implying that the same must apply to the operation of a PMV or suchlike public transport business.”

65. In Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 at 172, it was also held that mere assertions and the depositing of sums of moneys in a bank is not sufficient evidence.

66. The Supreme Court in William Mel v Coleman Pakalia (2005) SC790, a more recent case since Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 endorsed the principle enunciated by Injia, J (as he then was) in Jonathan Mangope Paraia v The State (1995) N1343 that where damages cannot be assessed with certainty, it does not relieve the wrongdoer of the necessity of paying damages and the Court must do the best it can. Since its enunciation, this principle has been applied in numerous decisions of the Supreme Court and National Court. This I think is in congruence with Section 158(2) of the Constitution which states that in interpreting the law, the courts shall give paramount consideration to the dispensation of justice. Dismissing the claim based on the principle in Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 considering the peculiar circumstances of the present case will defeat the objective of an award of damages which is to give the claimant compensation for damage, loss or injury he has suffered. In this regard, I note the speech of Lord Blackburn in Livingstone v Rawyards Coal Co, (1880) App Cas 25 at 29 where His Lordship defined the measure of damages as:

“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 or reparation.”

67. Although there is no documentary evidence like business records or tax returns, bank statements, I will not dismiss this head of claim as it will not be in the interest of justice to do so.

68. It has been pleaded in the statement of claim that the PMV bus generated a daily income of K500.00 and after the accident was off the road until 3 March 2014, a total of about 90 days. The plaintiff’s evidence is that the PMV bus generated an income of K500.00 daily (paragraph 4, Exhibit A) and it did not operate for one month (paragraph 11, Exhibit A). Based on the plaintiff’s evidence that the daily income was K500.00, in a month, say 30 days, the income that would have been generated would be K15,000.00. There is no evidence to show how much the driver and boss crew were paid or how much was saved after paying for fuel, spare parts, etc.

69. I reject the submission by the plaintiff that he should be awarded damages in the sum of K45,000.00 for loss of income for a period of 90 days. The evidence produced by the plaintiff is insufficient and does not justify that. I will have to do the best I can applying the principles in Abel Kopen v The State (1988-89) PNGLR 659, Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 and Jonathan Mangope Paraia v The State (1995) N1343. I will award K10,000.00.

Spare parts and repair costs

70. The plaintiff has adduced evidence of a number of quotations from several panel shops in Port Moresby including PNG Motors, Boroko Motors and Ela Motors supported by a few receipts. It is not clear from the evidence as to which of those panel shops might have repaired the PMV bus. The plaintiff’s evidence however is that he bought the spare parts and paid for repair costs. Using the quotations as my guide and the few receipts produced, I would uphold the plaintiff’s submissions and award K31,325.00 as damages for cost of repair.

Incidentals

71. The plaintiff claims K2,000.00 for cost of bus fares, lunch, photocopies etc. The plaintiff has not expressly pleaded or particularised the claim as is required by Order 8 Rule 34 of the National Court Rules. There is no foundation in the pleadings to make this claim. I award nothing.

SUMMARY OF DAMAGES AWARDED

72. The summary of damages awarded is as follows:

1. Damages for stress and difficulty: K6,000.00
2. Damages for loss of income: K10,00.00
3. Spare parts and repairs: K 31,325.00
4. Incidentals: Nil

Total: K47,325.00

INTEREST
73. The plaintiff seeks interest at a rate of 8% annually pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.

74. The awarding of interest under the Judicial Proceedings (Interest on Debts and Damages) Act is discretionary: Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24. In the exercise of my discretion, I will award interest at the rate sought of 8% annually on the total amount awarded of K47,325.00 from the date of filing of the writ of summons on 19 March 2015 to the date of judgment, 17 March 2020,which is a total of about five years. I assess and award interest at K18,930.00.

COSTS

75. Costs will follow the event, i.e. the plaintiff is awarded costs. This means that defendants shall pay the plaintiff’s costs on a party-party basis, which shall, if not agreed, be taxed.

JUDGMENT

76. The formal orders of the Court are:

1. The defendants shall pay to the plaintiff damages of K47,325.00 plus interest of K18,930.00 being a total sum of K66,255.00.
2. Costs shall follow the event, i.e., the defendants shall pay the plaintiff’s costs on a party-party basis, which shall, if not agreed, be taxed.
3. Time is abridged.

Judgment and orders accordingly.

____________________________________________________________
Greg Manda: Lawyers for the Plaintiff
Nelson Lawyers: Lawyers for the Defendants