DC468

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 803 OF 2000

BETWEEN

Thomas Mapa
Complainant

V

William Powi
Defendant

Mr. Iova S. Geita - Senior Magistrate
Date: 22 June; 17 July; 09 September 2000

Counsels
Complainant in person. 
Defendant in person.

REASONS FOR DECISION

GEITA. I. S. The complainant is claiming K 7,135.00 as costs for anticipated repair costs and loss of business as a result of a motor vehicle accident in which the defendant was alleged to be the driver. The break-up of expenses is as follows:-

1.	K 1,485.00	anticipated repair costs	
2.	K 100.00	tow truck hire	
3.	K 5,550.00	loss of business thirty seven (37) days at K150.00/day	

The complainant is alleging that on 8th October 1999, along Islander towards Hohola Wards road the defendant whilst under the influence of liquor drove a Mazda 323 Station Wagon Registration No: BAS 055 and collided with the complainant's taxi. According to the complainant the defendant left his lane and bumped into the front mud guard of his car at high speed.

In his attempt to escape from the scene of the accident the defendant drove of in his car without his two friends. The complainant after reporting the matter to the police drove one of defendants passengers to his house and found the defendant's car parked near his house. He approached the defendant the next day who admitted he was at fault and asked that the matter not be reported to the police, but to have it sorted outside. The complainant says that the defendant requested for three (3) quotations and was given same and he settled on the lowest one for Kl,785.00. Six (6) weeks later he made a payment of K300.00 and has not come good with the balance since. The complainant has come to this court after as a result of the defendants arrogance in not meeting his obligation made to the complainant.

In response to the complainants allegations, the defendant admit that there was an accident however deny that that he was driving the car at the time of the accident. He deposed in his affidavit that a Mr. Roman Tekopiri was the driver at the relevant time. He has deliberately remained silent on the assertion that he was under the influence of liquor. He has not attempted to call Roman Tekopiri whom he said was driving the car at the time of the collision. Nonetheless I am inclined to believe the complainant's version in that the defendant was the driver at the time of the collision. I say this because immediately after the accident the defendant escaped in the said car leaving his two friends one of whom was Roman Tekopiri.

The defendant says that the matter was settled amongst themselves with the final payment of K300.00 however the complainant takes issue of this story. As far as he is concerned no such agreement was made. Again I am more inclined to believe the complainant's version. Constable Paul Martin for the defendant also agrees with the defendant that the matter was resolved out of court.

Constable Paul Martin deposed that the accident was reported to him by the complainant on 15th October 1999. That is seven (7) days after the accident on 8th October 1999. He records the time of accident to be 7.00 am when the complainant says it occurred at 2.00 am. He also deposed in his affidavit witnessing Mr Powi and the three (3) men in the Mazda 323 contribute K300.00 and giving it to the complainant who accepted the money and the matter said to be resolved at the same time.

I am afraid the police constable's affidavit contains a few inconsistencies and must be treated with caution. First is, the time of accident which is different. Second is, the witnessing of the handing over of the K300.00 and settlement at the same time. From the evidence before me nothing of that sort took place "at the same time" he is referring too. This is because the defendant took off in his car and left his two friends stranded at the scene of the accident, one of which was apprehended by the complainant and taken to the police station. Thirdly he says the accident was reported to him seven (7) days after it happened.

This is clearly inconsistent with what is now before this court. The end result is that there is some element of falsehood in Constable Paul Martin's affidavit and must be disregarded. This court is very disturbed that a Traffic Officer is not telling the truth of what actually happened at the scene of the accident.

The complainant is claiming the cost of anticipated repairs of the vehicle and loss of business from the defendant.

The basic rule in damages for negligence is that the measure of damages in the case of damage to a chattel is the cost of repairs but if it is unreasonable from a business point of view to repair the vehicle or if the vehicle is damaged beyond repair, then the basic measure is the cost of replacement in an available market; see Halsbury's Law of England (4th ed), vol 34, par 88 at 72 and cases noted therein. A further ruling in connection with the loss of a profit-earning chattel is that, where a chattel used by a plaintiff in the course of his business is damaged or destroyed, the plaintiff is entitled to loss of profits during a reasonable period to effect repair: see Halsbury, par 89 at 73.

In the case before me I see no problems in assessing the nature of damages based on the rules above, namely, the quote from Holso Investment to repair and an allowance for a reasonable time, for loss of business.

The complainant is saying that from the time of the accident his Taxi was off the road for five (5) weeks. This time period is not supported by evidence. However, it could mean that the taxi was back on the road on or around 15th November 1999. I would have allowed for a period of three (3) weeks.

With respect to loss of profits, the figures are rather general. However averaging out the figures presented on a six-day-week basis for three (3) weeks, I would assess the amount of K100.00 per day or K600.00 for average earnings for one (1) week. Therefore loss of business would be in the area of K1,800.00. Judgement is principal minus the K300.00 given in cash.

To Summarise:

Cost of repairing	K1,785.00	
Three weeks loss of business	K1,800.00	
Interest at 8% from 27th March 2000	K 90.26	
Cost of tow truck	K 100.00	
Less Cash payment	K 300.00	
Judgement for	K3,775.26	

Judgement for K3,775.26.