Tingnii v Gelu [2021] PGNC 491; N9350 (6 December 2021)

N9350

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.58 OF 2018

BETWEEN:
THOMAS TINGNII
Plaintiff

AND:
BONY GELU
Defendant

Waigani: David, J
2021: 3 & 6 December

DAMAGES – assessment of general damages following entry of summary judgment and award of “specific” damages – objective of an award of damages is to put innocent party in same position as far as possible as he would have been in if the wrongdoer had not committed the wrongful act.

Cases Cited:
Papua New Guinea Cases

William Mel v Coleman Pakalia (2005) SC790
Steven Naki v AGC (Pacific) Ltd (2006) N5015

Samuel Roth v Samuel Waironak (2011) N4452

Golden Valley Transport v Dekenai Construction (2019) N8377

Overseas Cases

Livingstone v Rawyards Coal Co, (1880) App Cas 25
Counsel:

Thomas Tingnii, Self-Represented Plaintiff
Bony Gelu, Self-Represented Defendant

JUDGMENT

6^th December, 2021

1. DAVID, J: INTRODUCTION: On 26 September 2017, the defendant, Bony Gelu hired from the plaintiff, Thomas Tingnii at Waigani, Port Moresby, National Capital District, his motor vehicle, a Toyota Land Cruiser, 10 seater, bearing registration number BED 337 (the vehicle) for one day at K800.00. The defendant drove the vehicle up the Magi Highway to the Abau District, Central Province on the same day. The next day on 27 September 2017 at about 7:15 pm near Upulima Government Station in Central Province while returning to Port Moresby, the defendant drove the vehicle negligently at high speed and ran off the road into a river. The vehicle overturned with its roof resting on the river bed causing severe damage to its body and roof and was beyond repair. As the engine had ceased, the vehicle was pulled out from the river on 29 September 2017 and subsequently towed to Port Moresby in the early hours of Tuesday, 3 October 2017. By writ of summons endorsed with a statement of claim filed on 8 February 2018, the plaintiff commenced these proceedings claiming against the defendant “specific” damages of K64,521.60, general damages, interest and costs on an indemnity basis. On 13 March 2019, the Court entered summary judgment against the defendant and ordered that damages be assessed.
   
2. On 3 June 2021, the Court endorsed consent orders proposed and agreed to by the parties, which are reproduced below:
   

“1. The parties agreed that the defendant is to pay the plaintiff K36,500.00 all up including damages and interest within four months as final settlement of this matter by or before 31 July 2021.

2. The defendant shall be at liberty to make any payment on instalment in full sum of K36,500.00 prior to or in between the four month period given.
3. The plaintiff shall keep records of such payment referred to in term 2 of the orders until the stated amount is fully settled by 31 July 2021.
4. The plaintiff is to withdraw the proceedings forthwith by end of July 2021 upon full settlement of the sum K36,500.00.
5. Each party to meet his own cost of these proceedings.
6. Judgment shall be entered against the party who breaches or is in default of these consent orders whereas if it is the defendant, he shall pay the full claim of the plaintiff sought in the statement of claim, or if it is the plaintiff, the entire claim shall be dismissed accordingly.
7. The matter be adjourned to 31 July 2021 pending compliance of the preceding orders.” (sic)
   
3. The defendant defaulted so on 13 September 2021, on the application of the plaintiff, the Court entered judgment in favour of the plaintiff in the sum of K64,521.60 for “specific” damages and ordered that general damages being balance of the plaintiff’s claim be assessed.
   
4. This therefore was a trial on assessment of general damages.
   

EVIDENCE

5. The plaintiff relies on and reads the affidavits sworn by himself on 21 November 2018 and filed on 21 November 2018 (Exhibit A) and the other sworn on 16 August 2021 and filed on 18 August 2021 (Exhibit B).

6. The defendant did not rely on any affidavit although he sought leave to tender and rely on an affidavit sworn by himself on 1 December 2021 and filed on 1 December 2021. The plaintiff objected to the tender of the affidavit on the basis that it was not served on him, but if the defendant had, it would have been short served. Following a discussion between the bench and the defendant, the defendant decided not to rely on the affidavit and effectively meant that he did not produce any rebuttal evidence.

LEGAL ISSUE

7. The main legal issue for my consideration and decision is what amount of general damages, if any, should I award the plaintiff?

GENERAL DAMAGES
Submissions

8. The plaintiff relies on his extract of submissions filed on 1 December 2021 which I have considered. The plaintiff essentially submits that he has produced sufficient evidence and cites two comparable awards made by the National Court in the cases of Samuel Roth v Samuel Waironak (2011) N4452 and Golden Valley Transport v Dekenai Construction (2019) N8377 to support his claim that he is entitled to general damages between the amounts of K35,000.00 and K50,000.00 for mental distress and frustration endured as a result of the damage caused to the vehicle and interest at 8% per annum commencing from the time of filing of the writ of summons to the date of judgment. The plaintiff also submitted that the sum of K64,521.60 already ordered by the Court covered the cost of repair of the vehicle, labour, transport and other associated costs pleaded in the statement of claim.

9. In his submissions, the defendant contended that the amount proposed by the plaintiff for general damages was exorbitant and unjustified, but suggested that an award of K25,000.00 would be reasonable.

10. In his reply to the defendant’s submission, the plaintiff said he would accept the amount of K25,000.00 suggested by the defendant.

Consideration

11. The objective of an award of damages 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.”

12. 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 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.)
  

13. I have taken into account these principles.

GENERAL DAMAGES

14. As a general principle, a person who is injured by another person’s wrong will be entitled to general damages. They are not capable of precise quantification, but it will be at the discretion of the Court to determine what amounts it considers appropriate.

15. In Samuel Roth v Samuel Waironak (2011) N4452, the plaintiff hired out his motor vehicle to a company for one day. During the course of the hire period, an employee of the company drove the vehicle negligently and it was damaged beyond repair. Liability was established by default judgment. The plaintiff claimed general damages for loss of vehicle, business losses and damages for mental distress. For general damages, the Court awarded K50,000.00.

16. In Golden Valley Transport v Dekenai Construction (2019) N8377, the plaintiff’s motor vehicle, a Nissan Urvan bus, driven by an employee was involved in a collision in Lae with the second defendant’s motor vehicle, a Nissan Patrol utility, driven by the first defendant who was the second defendant’s employee. The damage caused to the bus was beyond repair and uneconomical. The first defendant was convicted by the National Court for dangerous driving causing bodily injuries and sentenced to two years imprisonment wholly suspended and placed on good behaviour bond. For general damages, a sum of K35,000.00 was awarded.

17. I have considered; the evidence before the Court which is not contested; the parties’ submissions; an amount of K64,521.60 has already been ordered by the Court in favour of the plaintiff for “specific” damages; the plaintiff has indicated his acceptance of the defendant’s suggestion that K25,000.00 was a reasonable amount to be awarded as general damages; and the two comparable awards made in Samuel Roth v Samuel Waironak (2011) N4452 and Golden Valley Transport v Dekenai Construction (2019) N8377. In all the facts and circumstances of the present case, I would consider a reasonable amount to award as general damages is K25,000.00.

INTEREST

18. I will award interest at the rate of eight per cent per annum pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 2015 from the date of filing of the writ of summons to the date of judgment and the same rate shall apply post-judgment until payment of the award in full.

COSTS

19. The awarding of costs is a discretionary matter. Except for costs orders that may have been made already, in the exercise of my discretion, the defendant shall pay the plaintiff’s costs of and incidental to these proceedings on an indemnity basis, which shall be taxed, if not agreed.

ORDER

20. The Court’s orders are:

1. Judgment is entered in favour of the plaintiff in the sum of K25,000.00 as general damages.
2. Interest is awarded at the rate of eight per cent per annum pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 2015 from the date of filing of the writ of summons to the date of judgment and the same interest rate shall apply post-judgment until payment of the award in full.
3. Except for costs orders that may have been made already, the defendant shall pay the plaintiff’s costs of and incidental to these proceedings on an indemnity basis, which shall be taxed, if not agreed.
4. Time is abridged.
   

Judgment and orders accordingly.

________________________________________________________________
Thomas Tingnii: Self-Represented Plaintiff
Bony Gelu: Self-Represented Defendant