DC357

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 07 OF 2002

John Davis
Complainant

V

The Manager, Waghi Valley Trans. Ltd
First Defendant

Waghi Valley Trans. Ltd
Second Defendant

Mt. Hagen: M.M. Pupaka
2004: 20th July

Counsel
Ms. R. Kalepo For The Complainant
Ms. P. Stegman For The Defendant

20th July 2004

M.M. PUPAKA: Through their respective council, the parties in this matter had agreed last year before Principal Magistrate Seneka, to file final submissions on the strength of their respective affidavit evidence for the Court’s consideration. When I later took charge of the case they had not yet filed those submissions, but they repeated their request before me and I likewise having seen nothing wrong with the suggested procedure, allowed them to file final them. However they did not file their submissions over several adjournments after that, until it became necessary to adjourn the case sine die to put an end to the needless mentions. That was on 23rd December 2003. They have now finally filed their submissions. Neither side asserted to exercise their rights to cross-examine any opposite side witnesses at any time. I note that the complainant had filed and served notice of his intention to cross-examine defence witnesses. However it seems he opted not to cross-examine. The defendants also have not bothered, opting; it seems, to submit on the law especially in the light of the nature of their defence. In any event I have considered the respective affidavits in their current form and the respective final submissions. The following body of this judgment therefore will consist of, in my view, a fair consideration of the parties’ affidavits and submissions.

The Complainant’s Case

On 30th July 2001 the complainant consigned 125 bags – which included 100 kaukau bags and 25 potato bags – to be carried to Lae in one of the second defendant’s trucks. The consignment was delivered at Lae about 3 days later on 3rd August, by which time about half of the bags (65) were rotten and not fit for sale at the markets. Consequently, pleading negligence by the defendants, the complainant sued them for K8992.50 in damages. He said he would have sold each bag of kaukau for K80.00 and each bag of potatoe for K120.00. He says he would have netted K8992.50 after allowing for K2607.50, which includes a sum of K2282.50 in deductibles and the K325.00, which has been paid to him by the defendants.

There is an immediately noticeable error on the complainant’s calculation in his summons and I must state it at the outset. He computed the final claim – K8992.50 – on the bases that the ruined bags were 85 of kaukau and 40 of potatoe. That is not correct. Although he had initially pleaded that all of the 125 bags consigned (100 kaukau bags and 25 potatoe bags) were ruined, [Refer to paragraph 3 of the Statement of Claim], he and his witnesses asserted later, in their respective affidavits, that 40 bags of kaukau and 25 (all) bags of potatoe were ruined. Going by the complainant’s own estimations – i.e., at K80.00 a kaukau bag and K120.00 a potato bag – there would have been a possible gross loss of K6200.00. So quite logically, following the same formula he adopted in computing the net after working off the deductibles, the complainant should be suing for K3592.50, which is K6200 less K2607.50, and not K8992.50. Speaking of the deductibles, I must say I am unable to understand the logics in the deduction of this K2282.50 "expenses", but I accept the relevant pleadings are an unambiguous statement that this figure is a deductible sum. Consequently this deduction will apply in any calculation or assessment done in this proceeding as a matter of course.

The Defendant’s Case

Liability is denied by way of a formal defence on the bases firstly that the defendant was not a "common carrier" and that its terms and condition of carriage absolves it of any liability, and secondly, on the bases that the kaukau and potato were already deteriorating when delivered to the defendants for carriage.

Findings on the evidence

First of all I wish to deal with the defendants’ plea for immunity under their standard terms of carriage. It is said their standard ‘TERMS AND CONDITIONS OF SERVICE’ contains provisions which say the second defendant is not a "common carrier" and among other things, it "SHALL NOT BE UNDER ANY LIABILITY for any loss of or damage to or mis-delivery in delivery, concealed damage, deterioration, contamination, evaporation, non-delivery of goods held in their care, custody or control of any consequential loss arising there from howsoever caused." (Sic).

Be that as it may I am not sure whether these sorts of provisions provide blanket immunity against suits like this instant one. Entities like Waghi Valley Transport Limited are in the business of providing transport services to those who are willing to pay the price of their services. Any neglectful conduct on their part, particularly toward their paying clients, may and would set them up for litigation, whether for damages or specific performance. To assert full immunity in this day and age by someone like the second defendant is to be overly presumptive, certainly it is parting company with reality. In civilized society negligent conduct would entail damages claims. In this instance, the defendants had the unfettered discretion to refuse carriage. I note with interest that one of the first provisions on the defendants’ ‘TERMS AND CONDITIONS OF SERVICE’, which among others read. "The carrier reserves the right to refuse the carriage or transport of goods for any person, corporation or company and the carriage or transport of any class of goods at its discretion." The defendants cannot, after having accepted the obligation to carry the bags and payment for it, as well as, by implication, allowed persons like the complainant to relay on all the expressed and implied warranty going in their line of business, refuse liability on the bases only of their self serving ‘TERMS AND CONDITIONS OF SERVICE’. I would say more on it later.

So were the defendants negligent in their conduct to the detriment and loss of the complainant? This is the pivotal issue.

First of all I must say that the estimations of time are imperative in deciding the issues in this case. Therefore I am surprised, and disappointed, that the parties have not raised or addressed the various timings. However I will try to fairly guess the essential times. Otherwise it would be difficult to resolve the issues without guessing at the various times.

It is not said at what time exactly on 30th July 2001 the bags were delivered at the defendants’ yard to be packed into a container and made ready for loading onto the carrier truck. To be more realistic I would presume the delivery and packing process would have taken about half a day or a day. Then after that the drive to Lae would take up some time. I would think it realistic again to say the drive, by a big haulage truck, would take a day, say a 12-hour period bar non-essential stoppages for the comfort and convenience of man (driver) and machine (truck). Depending on what time of day or night the truck might arrive at Lae, and depending on the availability of personnel to unload the containers and also the presence of the complaint to accept delivery, the unloading process might take some time, perhaps measured in hours. In my estimation it is reasonable to assess the total time involved, from the moment the truck left Mt. Hagen to the moment its cargo are ready for acceptance by the complainant, to be just over a day, say perhaps within 14 to 15 hours in all. That is in a day and a half, not counting 30th July, which, as I said, would have been likely taken up in Mt. Hagen. It is fair to say the bags should have been out of the containers at Lae by midday 1st August.

It is also vital to note for the record that the complainant seems not to have expected any damages to be caused to his kaukau and potato bags by reason only of the reasonable transit and unloading time, which I have fairly guessed to be up to a day and a half at the most. In the course of these discussions, at an appropriate juncture, I will refer to the need to fairly guess or estimate the after harvest life and keeping time of kaukau and potatoes. I must also state that the complainant’s claim against the defendants seems to be based exclusively on the latter’s delayed delivery. In fact there is no evidence of any other cause for ruin to the bags other than the delayed delivery, so the complainant’s case would stand, or fall, on the issue of delayed delivery and no other.

The bags were delivered on 3rd August 2001. Exactly what time on 3rd August is not said, but going by my estimations of times the arrival was about 2 and half days later than as may be reasonably expected.

I am not about to conclude that the delay alone was negligent conduct on the part of the defendants. Though there is not one scrap of evidence from the defendants as to what caused the delayed delivery, I would have thought all parties know there can be delays of one sort or other. There maybe road blocks, there maybe holdups, there maybe vehicle accidents, there maybe vehicle breakdowns, and there maybe any number of causes for delay. The complainant must be prepared to live with foreseeable and legitimate delays on the part of the defendants, which are or maybe ordinarily associated with the trucking and haulage service. On the other hand the defendants must be prepared to shoulder blame and liability for any damages legitimately caused by delayed delivery. I said earlier that the defendants’ plea to be exonerated by the provisions of their ‘TERMS AND CONDITIONS OF SERVICE’, especially their plea that they are not a ‘common carrier’ and that they cannot be liable for any damage caused by delay in delivery of perishable goods, cannot stack up against suits like this one. For instance the defendants freely opted to carry perishable goods whilst being fully aware that timely delivery on their part may not be possible. In the circumstances, a conclusion that the defendants are estopped from pleading the pertinent standard clauses in their ‘TERMS AND CONDITIONS OF SERVICE’ is open. In my view they ought to be estopped from relying on it. They should live up to all the undertakings implied by their acceptance of the responsibility to carry, especially by accepting the bags and by accepting payment.

Now having said all of that the threshold question that must be asked is this: In all probability was the damage caused solely because of the 2 and half days or 3 days delay? In the context of that question begins to arise two other legitimate issues for resolution too. First issue is the after harvest life of kaukau and potatoes. How long can they keep after harvest? Is it possible for kaukau and potatoes to go rotten in the 2 and half days to 3 days delay in delivery? Secondly, if it is not possible for kaukau and potatoes to go rotten in the scale asserted in just 3 days, between 31st July and 3rd August, is it possible that the kaukau and potatoes may have been harvested well before 30th July, such that they were beginning to rot even as the bags were consigned for transportation?

The one thing clear on the evidence is that 60 bags of kaukau were not rotten, which means these were still good for sale at the market, and presumably these were sold. Though there is no evidence on it, common sense indicates that it is not possible to sell off all 60 bags of kaukau at the market on the same day, in fact it would take more than a day to sell all 60 bags of kaukau. So it is quite clear kaukau can remain fresh for sometime. This, by implication, further means among other things, that the 40 bags of kaukau that were found to be rotten on arrival cannot have gone rotten solely because of the 3 days on transit. Unless there is another explanation for it, it is quite possible that the kaukau bags had been harvested well before the 30th July. Whilst it may not be possible to say the kaukau bags started rotting on or around 30th July, it is probable that they were ready to go bad when brought into the defendants’ yard for carriage. 

I cannot say the same for the 25 bags of potatoes though, as all of them were found to be rotten on arrival. It is hard in the circumstances to assess the relative keeping time of potatoes. This is compounded by the lack of evidence on exactly when the potatoes were harvested. However I would think, applying the same process of reasoning in relation to the bags of kaukau, the potatoes can only have been ready to go bad if indeed they were harvested together with the kaukau. If, however the potatoes were harvested later than the kaukau and, if potatoes can in fact remain fresh for a relatively shorter time, then the 2 and half to 3 days’ delay could have had a major impact on the condition of the potatoe bags upon arrival. Again, since there is no evidence on this, this Court can do no more than allow the benefit of the doubt to go to the complainant. Really the defendants should have cross-examined the complainant on these aspects. They did not do that. In the end this Court cannot rule out the possibility that the potatoes may have gone bad due, for the most part, to the 2 and half to 3 days’ delay in delivery. Therefore, as I said, the benefit of this doubt can only go to the complaint.

In the final analysis I think the complainant is entitled to have judgment for the loss of the 25 bags of potatoes, simply because the relative after harvest life of potatoes is unclear, and it was an aspect which the defendants ought to have cross-examined on or given evidence of. As for the 40 bags of kaukau lost, I would grant judgment but less 50% for the quite likely possibility that these were already or at the stage of ruin when consigned for transportation. As is clear, kaukau just cannot go bad in 2 and half or 3 days after harvest. It seems they can keep for longer than that and, in this instance, I am unable to rule out the quite likely possibility that the kaukau may have been harvested well before 30th July, which is why some (40) bags were rotten by the time the bags arrived in Lae on 3rd August. Equally so the defendants cannot escape blame as there was delayed delivery on their part, albeit by a margin of 2 and half to 3 days.

On the subject of the price of the kaukau and potatoes, the complainant says he would have sold a bag of kaukau for K80.00 each and a bag of potatoe for K120.00 each. It is not clear whether K80.00 for a kaukau bag and K120.00 for a potatoe bag is when sold bag by bag or when sold in small lots of 2 to 3 or so kaukau or potatoes. Again evidence on this is sorely lacking. It ought to have been clearly established. I cannot help iterating that the failure to cross-examine stands out in stark contrast. It consequently means this Court can only accept the suggested prices per bag. It was always incumbent upon the defendants to provide evidence of the going or comparative rates or submit on what they think is the right price of kaukau and potatoes when sold at the market in Lae.

In the end I would grant judgment for the complainant in the sum of K2317.50. This is how the sum has been computed: Firstly 40 bags of kaukau sold at K80.00 = K3200.00 less 50% = K1600.00. Secondly 25 bags of potatoes sold at K120.00 = K3000.00. K1600.00 + K3000.00 = K4800.00. A further sum of K2607.50, which includes the K2282.50 in "expenses" and the already paid K325.00, is deducted from the K4800.00. That leaves the final figure at K2317.50. As I said I would grant judgment for the complainant in that sum.

I wish to state one final point for the record. There is much evidence either not available or unclear or the parties have neglected to cross-examine opposite side’s witnesses such that vital facts needed to be ascertained in order to rule out and or rule in a few other possibilities that are open in this case, are not before the Court. Moreover, after the respective cases have been closed for decision, there is not much this Court could do other than do the best it can under the circumstances. In our adversarial system of justice, providing the relevant facts and submitting a sound argument on the applicable law is the responsibility of each party. Both sides here have failed either to provide all relevant facts or have neglected to cross-examine appropriate witnesses in order to ascertain the asserted facts. They must therefore live with the consequences of their failures and negligence.

Kunai & Co. Lawyers: Complainant
Warner Shand Lawyers: Defendants