Wassy v Avir [2025] PGNC 226; N11376 (21 July 2025)

N11376

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1017 OF 2019

BETWEEN:

RUSSEL MEL WASSY
Plaintiff

AND
JACK AVIR
Defendant

LAE: Dowa J
2023: 17^th April & 20^th July
2025: 21^st July

CIVIL CLAIM – contract for hire of motor vehicle- terms of contract-loss of vehicle via accident during hire– claim for breach of contract- whether vehicle was roadworthy-whether certificate of registration required for proving ownership-whether the plaintiff proved on the balance of probabilities that the defendant breached terms of contract- as for damages plaintiff has to prove damages with credible evidence-damages assessed and judgment entered.

Cases cited:
Anis -v- Taksey (2011) N4302
Danga v MVIT (1997) N1665,
Enaia Lanyat v State (1996) N1481; Obed
Graham Mappa v PNG Electricity Commission [1995] PNGLR 170,
Jonathan Mangope Paraia v The State (1995) N1343,
Kekeral Farming v Queensland Insurance [1995] PNGLR 405,
Kei v MVIT [1992] PNGLR 195,
Lalip v Fred Sekiot and The State (1996) N1457;
Marshall Kennedy v Coca Cola Amatil (2011) N4946.
Molu v Pena (2009) N3817
Nagari v Rural Development Bank (2007) N3295,
Peter Wanis v The State (1995) N1250,
Paraka v Upaiga & Aother (2010) N4090
Paikel v Kaiwe Pty Ltd [1997] PNGLR 603,
Samot v Yame (2020) N8266.

1. Yooken Paklin v The State (2001) N2212.
   

Counsel:
T. Tienare, for the Plaintiff
J Avir, in person

DECISION

21st July 2025

1. DOWA J: This is a decision on both issues of liability and damages.
   
2. The Plaintiff claims damages against the Defendant for breach of contract and for the loss of his motor vehicle a Toyota Land Cruiser, 10-Seater Registration No. LBH 128 extensively damaged in a motor vehicle accident in Okapa District, Eastern Highlands Province.
   
3. The Plaintiff alleges that his motor vehicle was hired by the Defendant on 17^th July 2016 for two days. The Defendant did not return the vehicle within two days as agreed. The Plaintiff found out later that his vehicle got involved in a road accident.
   
4. The Plaintiff alleges that the Defendant breached the terms of the agreement by failing to return the vehicle. Furthermore, the Defendant caused an accident resulting in the vehicle being damaged and destroyed. As a result of the breach of contract and negligent actions of the Defendant, the Plaintiff suffered loss.
   
5. The Defendant has agreed to pay for the vehicle but has not fulfilled his promise. Aggrieved, the Plaintiff filed recovery proceedings seeking damages.
   

Trial

6. The trial was conducted on 17^th April 2023. Both parties tendered evidence by consent without cross-examination. The Parties were directed to file their written submissions by 31^st May 2023. The parties did not file their submissions. The Court extended the time for filing submissions, and the matter was fixed for hearing of submissions on 20^th July 2023. Only the Plaintiff filed his submissions. The Defendant made no appearance and made no submissions.
   

Evidence-The Plaintiff

7. The Plaintiff relies on the following 10 affidavits which were tendered into evidence and exhibited as follows.
   
   1. Affidavit of Russel Wassy filed 6^th November 2019, exhibited P1
   2. Affidavit of Russel Wassy filed 3^rd September 2020, exhibited P2
   3. Affidavit of Sunna Mel filed 3rd November 2020, exhibited P3
   4. Affidavit of Timothy Kolgkuku filed 3^rd November 2020, exhibited P4
   5. Affidavit of John Anis filed 3rd November 2020, exhibited P5
   6. Affidavit of Judas Nalau filed 3rd November 2020, exhibited P6
   7. Affidavit of James Owa filed 3rd November 2020, exhibited P7
   8. Affidavit of Joseph Kawage filed 3rd November 2020, exhibited P8
   9. Affidavit of Joseph Kawage filed 3rd November 2020, exhibited P9
   10. Affidavit of Russel Wassy filed 3^rd December 2021, exhibited P10
       
8. This is the summary of the Plaintiff’s evidence. The Plaintiff is the registered owner of the motor vehicle, Toyota Land Cruiser, 10-seater Registration No.LBH 128. On 16^th July 2016, the Plaintiff entered an oral agreement with the defendant to hire his vehicle for two days at K 700.00 per day. He paid K1,400.00 and took delivery of the vehicle on 17^th July 2016. It was agreed that the Defendant hired the vehicle to transport the casket of his mother-in-law from Nadzab Airport to Malibu and return the vehicle two days later. Instead, the Defendant took the vehicle all the way to Okapa, Eastern Highlands Province. On his way back, the vehicle ran off the road and had an accident at Waviga Mountain in Okapa District, EHP. The vehicle was extensively damaged. Other than the damage, villagers stripped the entire vehicle and made off with the parts. The Plaintiff failed to report the accident to Okapa Police and the Kainantu Police Stations. Police in Kainantu asked him to return to Kainantu for questioning, but he did not show up.
   
9. As a result of the accident, the Plaintiff suffered loss of vehicle and income. The Plaintiff purchased the vehicle from Ambu Naiya Investment Limited for K 65,000.00 in 2015. The vehicle was used for hire business. The Defendant was asked to replace the vehicle and compensate him for the loss of income. The defendant agreed to pay K 200,000.00 by signing a statutory Declaration on 28^th August 2018 but did not pay.
   
10. The Plaintiff rejects the Defendant’s contention that the vehicle was not in a roadworthy condition. He deposed that the vehicle was duly registered and was in a roadworthy condition when it was hired out.
    

The Defendants’ Evidence

11. The Defendant relies on the following affidavits which were tendered into evidence and exhibited as follows.
    
    1. Affidavit in response of Jack Avir filed 11^th November 2019-Exhibit D1–
    2. Affidavit of Jack Avir filed 17^th April 2023- Exhibit D2
       
12. This is the summary of the Defendants’ evidence. The defendant deposed that he hired the Plaintiff’s vehicle for two days commencing 18^th July 2016. He paid K1,400.00 for the hire. He hired the vehicle to bring the casket of his mother-in-law from Lae to Okapa. After taking delivery, he noticed the vehicle was unregistered and unroadworthy. As he was running out of time he raised no issue with the condition of the vehicle. While driving the vehicle they encountered problems, with the tyres, the battery and the brakes. After delivering the casket, they decided to return to Lae on the afternoon of 19^th July 2016. When they reached Waviga Mountain, Okapa, the brakes failed as he was descending downhill. The vehicle ran off the road and down the cliff and got damaged. The villagers striped all parts to the vehicle. The accident took place around 9.00pm. There were no officers on duty at Kainantu Police Station that night and so he did not report the accident to the police.
    
13. The defendant deposed that the accident happened because of the Plaintiff’s failure to maintain the vehicle in a reasonable and roadworthy condition. He deposed that two other people approached him claiming ownership and he is not sure whether the Plaintiff is the registered owner.
    
14. Finally in relation to a statutory declaration he signed on 28^th August 2018 promising to pay K 200,000.00 to the Plaintiff, he deposed it was forced on him by the Plaintiff at the Police Station.
    
15. The Defendant deposed that between 2016 and July 2017, he made installment payments to the plaintiff totaling K 4,130.00.
    

Issues

16. The issues for consideration are:
    
    1. Whether there is binding contract for the hire of motor vehicle LBH 128 between the Plaintiff and the Defendant.

b. Whether the Defendant is liable under the terms of the hire agreement

c. Whether the Plaintiff is entitled to the reliefs sought.

Burden of Proof

17. The burden of proving the claim rests on the Plaintiff and he must discharge the burden on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and hope to be awarded damages claimed. Refer: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (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.

a. Whether there is binding contract for the hire of Motor vehicle LBH 128

18. The Plaintiff submits that he entered a valid contract with the Defendant to hire his motor vehicle, Toyota Land Cruiser, Ten-Seater, LBH 128 at the rate of K 700 per day for 2 days. The hire period was for two days commencing 17th July 2016, and the vehicle was to be returned on 19th July 2016 at 4.pm in Lae.

Consideration

19. The Plaintiff’s claim is for breach of hire contract. The law of contract is settled. It is a trite law of contract that the following elements be present for a contract to be valid and enforceable:

1. Offer
2. Acceptance

100. Intention to create legal relation.

4. Passing of consideration
5. Capacity of parties
   

Refer to NKW Holdings -v- Poladin Solutions PNG Ltd, (2020) 8339, Keam investments v Toyota Tsusho (PNG) Ltd (2019) N7859, Titus Tumba v Samson (2020) N8721.

20. The terms of the hire agreement are:

a. The hire rate for the vehicle was K 700.00 per day

b. Hire period was 2 days

c. Hire period was from 17^th July 2016 to 19 July 2016.

d. All payment to be made before delivery of the Vehicle.

e. Vehicle to be returned by 4pm, 19th July 2016.
21. The Defendant paid K 1,400.00 on 17th July 2016 and took delivery of the vehicle. However, he did not return the vehicle on 19th July 2016 as agreed.

22. Clearly, the basic elements of the contract are present. The parties had capacity to contract. The parties intended to create a legal relationship. There was an offer and acceptance and passing of consideration. The only issue is the Defendant did not return the vehicle in good condition on the day contracted.

23. The Defendant contended that the vehicle was unregistered and unroadworthy. The Defendant also questioned the ownership of the vehicle.

24. There is a plethora of judicial authorities that a certificate of registration is relevant to proving ownership of a motor vehicle. Refer: Kei v MVIT (1992) PNGLR 195, Paikel v Kaiwe Pty Ltd (1997) PNGLR 603, Danga v MVIT (1997) N1665, Nagari v Rural Development Bank (2007) N3295, Molu v Pena (2009) N3817 and Paraka v Upaiga & Another (2010) N4090.

25. In Paraka v Upaiga (Supra) the Court stated this at paragraph 19 of the judgment:

“19. But I am not satisfied that he is the owner of the motor vehicles because he has not produced any certificate of registration to prove ownership and I do not recall him giving any oral evidence as to when he purchased these motor vehicles or why he was unable to produce the certificate of registration for each motor vehicle. Evidence of ownership is relevant and crucial to a claim for damages for it is trite that he who alleges must prove it and in this case, if the plaintiff claimed that he suffered loss because his motor vehicles were damaged by the first defendant and his policemen, he must first prove that he owned them. In the absence of any evidence proving his ownership of these motor vehicles, I am not satisfied that he has established this claim and dismiss it.”

26. The evidence shows the Plaintiff was the registered owner of the Motor vehicle, Toyota Land Cruiser, Ten -Seater, Registration LBH 128 at the time of the contract. The Certificate of Registration and MVIL Insurance Certificate show the vehicle was registered in the name of the Plaintiff on 21st March 2016 and expiring 20th March 2017. The Police and Road Transport Report shows the vehicle was inspected and passed its requirements before it was registered. The roadworthiness certificate was issued on 21st June 2016, less than a month before the date of hire.

27. I am satisfied that the Plaintiff is the registered owner of the vehicle. The vehicle was in a roadworthy condition when it was hired out to the Defendant.

b. Whether the Defendant is liable under the terms of the hire agreement

28. It was a term of the hire contract that the Defendant return the vehicle within two days in good condition. The vehicle was not returned within the two days. The Defendant did not return the vehicle on the appointed day and time. The Plaintiff was informed by the Defendant that the vehicle was involved in an accident. It was established that the vehicle was damaged and parts striped. As a result, the Plaintiff lost the vehicle completely.

29. According to the Plaintiff’s evidence, the Defendant promised to buy a new vehicle. He did not keep his promise. When the Plaintiff laid a complaint at the Lae Central Police Station, the Defendant signed a Statutory Declaration on 25th August 2018 promising to pay K 200,000.00 by 2nd October 2018. The Defendant did not fulfil his promise
30. The Defendant contested liability saying the accident was caused by brake failure and not attributed to his manner of driving. Both parties were not cross-examined on the contents of their evidence.

31. I reject the Defendants contention for two reasons. Firstly, the Plaintiff’s case is basically for breach of contract. The Defendant failed to return the Plaintiff’s vehicle in good condition within two days as agreed.

32. Secondly, the Defendant failed to take care of the vehicle while in his possession. The Defendant had a contractual duty of care, tantamount to the tort of negligence. The elements of the tort of negligence particularly set out in the case Anis -v- Taksey (2011) N4302 are:

(1) Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.
(2) The tortfeasor breached that duty, i.e. by act or omission, the tortfeasor's conduct was negligent.
(3) Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim.
(4) Plaintiff and/or victim’s injuries were not too remotely connected to the tortfeasor's conduct; and
(5) Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

33. The evidence shows the Defendant’s conduct was unreasonable and malicious. The Defendant did not inform the Plaintiff of the accident in the first instance as soon as practicable. The defendant did not report the accident to Okapa and Kainantu Police Stations. The Road Accident Report shows, the Defendant failed to report the accident within 24 hours and proposed to charge him. The Traffic Police also proposed to charge the Defendant for driving without due care and attention under Section 17 (2) of the Motor Traffic Act. The evidence shows, despite numerous requests by Kainantu Police, the Defendant failed to present himself to the Kainantu Police to be dealt with.

34. Thirdly, the Defendant has shown by his conduct that he is untrustworthy. First, he promised the Plaintiff on 20th July 2016, that he was going to buy a new replacement vehicle. Second, he signed a Statutory Declaration on 25th August 2018 that he was going to pay the Plaintiff K 200,000.00 by 2nd October 2018. Third, during the mediation conducted by former judge, Gavera Nanu, on 24th June 2022, he agreed to make an initial payment but refused to sign the Mediation Agreement, resulting in a Certificate of bad faith issued against him.

35. For the foregoing reasons, I find the Defendant liable.

Whether the Plaintiff is entitled to the reliefs sought.

37. Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State – N147; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

38. 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.)”
  

Consideration

39. How much in terms of damages is the Plaintiff entitled to? The Plaintiff claims the following heads of damages in the statement of claim:

1. Return of the vehicle
2. Loss of the vehicle

100. General damages

4. K200,000.00
5. Special damages
6. Loss of income
7. Interest at 8%
8. Costs
   

Return of the vehicle

40. The Plaintiff pleaded that the Defendant return the vehicle. There is no evidence that the vehicle still exists. The evidence on the other hand shows that the vehicle is completely damaged and striped and all that remains is just a skeleton. This relief is practicably not available.

Loss of the Motor vehicle.

41. The Plaintiff pleaded that for the loss of motor vehicle, he claims K 200,000.00 as promised by the Defendant. I note the Defendant’s contention that he was forced to make a promise to pay K 200,000.00. In my view, K 200,000.00 is for a near new vehicle. The Plaintiff has not produced a pre accident value of the motor vehicle. The evidence shows, the vehicle was previously owned by Ambu Naiya Investments Limited. It was purchased or delivered to Ambu Naiya in November 2012. It was sold to the Plaintiff on 21^st December 2015. By July 2016, the vehicle was 3 years, seven months old, relatively new. The Plaintiff purchased the vehicle for K 65,000.00. There is no evidence of the original purchase price to calculate deductions for depreciation. In the absence of the pre accident value, the Court will assess the value of the vehicle between the purchase price of K 65,000.00 and the promised sum of K 200,000.00. In my view and to avoid uncertainty, I will allow K 65,000.00 only being the purchase price of the vehicle and award same.

Special Damages

42. The Plaintiff pleads a claim for special damages for K 3,600.00. However, he has not given any evidence supporting a claim under this head. There shall be no award.

General Damages

43. The first Plaintiff submits that he is entitled to general damages for pain and suffering. The Court has found the Plaintiff is entitled to damages for breach of contract and duty of care. Since July 2016, the Plaintiff has been deprived of possession and ownership. The vehicle was hired out in a normal hire business to the Defendant. It was never returned and lost for good. Despite repeated promises by the Defendant to buy a replacement vehicle, he has not kept his promise. As a result, the Plaintiff could not use the vehicle in his daily activities, especially in his hire business. His business suffered because of loss of possession and use of the vehicle. Taking all these factors into account, the Court shall make an award that is fair and equitable to do justice in the circumstances. In my view the sum of K 10,000.00 is reasonable, and I shall make an award for that sum.

Loss of Income

44. The Plaintiff pleads economic loss. The law on economic loss is settled in this jurisdiction. A claim for loss of income must be supported by proper documentation, including tax and accounting details, and bank statements. Refer: Peter Wanis v The State (1995) N1250, Graham Mappa v PNG Electricity Commission (1995) PNGLR170, Kekeral Farming v Queensland Insurance (1995) PNGLR 405, and Marshall Kennedy v Coca Cola Amatil (2011) N4946.

45. The Plaintiff deposed that the vehicle was used for his hire business. Prior to the loss of the vehicle, it was hired by the Deputy Governor for Morobe Provincial Government for six months for K 126,600.00. He has also registered a business name and is a registered taxpayer. However, he has produced no records of any income prior to the accident. He produced no bank statements to confirm the deposits or tax returns. Nevertheless, I accept that he was using the vehicle for hire business and a reasonable compensation be considered for the loss of income. In these circumstances, I will fix a global sum of K 30, 000.00 to compensate for loss of income. I will make an award for that sum.

45. The total amount of the award shall be K 105,000.00

Interest

45. 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, (23/08/2019) to date of judgment (21/07/ 2025) for a period of 2,157 days. Interest is calculated as follows:

K 105,000 x 8/100 = K 8,400.00
K 8,400 /365 days = K 23.00 per day
K 23.00 x 2,157 days =K 49,611.

46. The total award inclusive of interest is = K 154,611.00

Costs

47. The Plaintiff is claiming cost. I will allow costs in favour of the Plaintiff.

Orders

The Court orders that:

1. Judgment is entered for the Plaintiff in the sum of K 154,611.00 inclusive of interest.
2. Post Judgment interest shall accrue at the rate of 8% until settlement.
3. The Defendant shall pay the costs, to be taxed if not agreed.
4. Time be abridged.

__________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Jack Avir: Defendant appearing in person