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Mappa v PNG Electricity Commission ELCOM [1992] PGNC 31; N1093 (25 August 1992)

Unreported National Court Decisions

N1093

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 887 OF 1990
GRAHAM MAPPA
V
PNG ELECTRICITY COMMISSION

Mount Hagen

Woods J
7 July 1992
25 August 1992

DAMAGES - measure of - Property damage - motor vehicle damaged in accident - claim for loss of profit.

Cases Cited

Kopen v The State [1988-89] PNGLR 659

Topa v The State (1991) Unreported

Counsel

P Dowa for the Plaintiff.

J Kil for the Defendant.

25 August 1992

WOODS J: This is a claim for damages for loss of income following damage cause to the Plaintiff’s Isuzu 25 Seater passenger bus on 19th August 1989 when it was involved in a collision with icle owned by the Defendant.

The facts are that both both vehicles were travelling on the Okuk Highway near Mount Hagen in opposite directions and collided head on. Both drivers died instantly.

The only evidence on the circumstances of the accident was a person who lived near the scene of the accident and describes an “Elcom Toyota landcruiser was speeding down the road when I saw it travelling very fast down the Elcom vehicle had moved to right hand side of the road and I told lady this vehicle will overturn and crash into oncoming vehicle. At that moment speeding Elcom vehicle went and bumped into bus while bus had its wheel off the side of the Bitumen”.

The Police Constable who attended the scene after the accident determined from the position of the vehicle after the accident and the skid marks that the Elcom vehicle had went across the road from his left hand side on to the other side in front of the bus and therefore was the cause of the collision.

There is no other evidence on the circumstances of the accident. It is submitted that the Police Officer arrived well after the accident so cannot be sure of the circumstances. It is submitted that the other witness was too far away to be sure of the circumstances and that he also belonged to the same clan as the plaintiff.

However there is no other evidence on the circumstances so on the balance of probabilities the court can accept the only evidence it has and the credibility of the police report and find that it was the driver of the Elcom vehicle who was negligent and there was no evidence of any negligence in the driver of the PMV. I therefore find that the defendant is liable in any claim for damages.

As a result of the collision the Plaintiff’s vehicle was damaged beyond repair and was declared a write off by the insurer. Whilst the Plaintiff’s claim against his insurance policy was met the Plaintiff is claiming for other loss namely loss of profits until the claim was met and other expenses involved with the loss.

It is well established law 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 repairs or to secure a replacement chattel. The Plaintiff’s vehicle was a PMV and therefore the plaintiff’s first head of loss is loss of profits from the operation of a PMV. The plaintiff’s vehicle was a 25 seater Isuzu bus which had only just been purchased in June 1989, 2 months before the collision. The Plaintiff had to wait for 13 weeks before his claim was settled by the insurer so it can be said that he lost the use of the bus and was not in a position to secure a replacement for that 13 weeks. Is this 13 weeks reasonable.

In the case of Kopen v The State [1988-89] PNGLR 659 I found that there was inordinate delay because of the plaintiff’s negligent or careless financial arrangements and I held that 3 week in the circumstances of that case was a reasonable period to effect repairs for the calculation of loss of profits. In another case Topa v The State 1991 Unreported I found that the defendant State was grossly negligent and I allowed a period of 3 months for loss of profits where there was a total loss of a PMV.

In the case before me now it took 13 weeks for the claim to be processed. I find this is not unreasonable in a total loss situation so I am prepared to allow for loss of profits for 13 weeks.

However what evidence is there of this loss of profits namely the running expenses and profit from the operation of the PMV. I have not been presented with any properly audited set of accounts merely general evidence of figures the plaintiff states as relevant. The Plaintiff did not rely himself on the operation of the PMV for his livelihood, he had a separate employment. Therefore if he already had other employment and was also receiving a profit from the operation of a PMV he was liable to file income tax returns declaring the additional income. There has been no copies of income tax returns showing the profit he made from the operation of a PMV so must I draw the conclusion that in truth he earned no profit or do I accept it as a notorious fact that the PMV was operating and would continue to so operate and generate a profit each week.

In spite of there being no audited or documented figures for the operation of the PMV I am prepared to accept that the loss of the PMV did result in some loss to the plaintiff by way of loss of profits from his investment in the PMV. The Plaintiff states that he had a weekly takings of K1,200 and after expenses on fuel, wages and repairs made a net profit of K800 per week. Those figures seem to be light on allowances for wages for driver and crew, I have previously in Kopen’s case above referred to been given other figures for a 25 seater PMV. In this case before me I cannot accept a profit figure of K800 per week. I would be prepared to find a figure of about K600 a week profit for 13 week totalling K7,800.

I find no basis for allowing for the pro rata portion of the comprehensive insurance premium. The insurance is part of the running costs of running the PMV and is paid to cover the possibility of loss. The vehicle was lost so the plaintiff has had the benefit of that expense.

With respect to the excess of K1,000 that was a loss to the plaintiff as the insurance payment was less by the K1000 excess of the total loss.

With respect to the claim for extra bank interest there can be no doubt that because of the accident the plaintiff was not earning any income from his PMV and this income was needed to help pay off the Bank loan. There would have been a delay in making regular payments from the date of the accident until the date the settlement cheque was received from the Insurance Company and such delay would have incurred some default interest. I find the figure of K33.19 not an excessive figure in the circumstances. So I will allow that figure.

To Summarise,

The above are monies that the plaintiff has lost during the period 19th August to 20 November 1989. So I will allowrest at 8% on this amount funt from the date of the issue of the writ namely 12 September 1990 to todays date being K1,378.46.

I order Judgement for K10,211.65.

Lawyer for the Plaintiff: P M Dowa

Lawyer for the Defendant: Peter Steele