N1366

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 887 OF 1990

GRAHAM MAPPA
Plaintiff

V

P.N.G. ELECTRICITY COMMISSION
Defendant

Mount Hagen: Woods J
8 August & 4 October 1995

Damages - Measure - Property damage - Motor vehicle - Loss of profits - Need for appropriate business records - Contra earlier case N1093 after Supreme Court ordered re-hearing.

P Dowa for the Plaintiff
D L O’Connor for the Defendant

29 September 1995

WOODS, J.: This is a claim for damages for loss of income following damage caused to the Plaintiff’s Isuzu 25 seater passenger bus on 19th August 1989 when it was involved in a collision with a vehicle owned by the Defendant. A trial was heard on this claim in July 1992 and an award of damages was made. However there was an Appeal to the Supreme Court against the assessment of the damages and the Supreme Court heard the appeal in June 1993 and allowed the appeal against damages and ordered that the matter be remitted for further assessment before the trial judge based upon matters raised in their ruling. This is now the rehearing. 

In their ruling the Supreme Court found that the appellant did not establish his damages by the calling of sufficient evidence. The only evidence led was a statement by the plaintiff that his business earned K1,200 per week and this evidence was not accepted. There was no documentary or other kind of evidence to establish that fact apart from some comparison with another similar business run by someone else. There were no bank records, tax returns or balance sheets or other kind of evidence and in their judgement that was not sufficient to establish the damages in law. 

This ruling therefore makes it clear that if you wish to establish matters like loss of profits from the operation of a modern business then it is necessary to comply with the modern law such as produce such records as are required by the law. Thus if you wish to have the advantages of a modern world of business then you must comply with modern matters like tax laws. This would require appropriate business records to show whether any profit over an above business running costs were earned. And then if a profit was earned there is the requirements to pay taxes. The courts have been referring to this requirements in recent years especially in the operation of shop or trade store businesses. And the Supreme Court by its ruling is implying that the same must apply to the operation of a PMV or suchlike public transport business. The evidence before the court in the original trial was that the plaintiff did have a wage or salary earning employment so any profits he earned from the operation of any other business would have required additional taxes to have been paid.

The only additional evidence now brought to the court by way of records of any earning from the PMV is some of the plaintiff’s savings passbooks for the period between 1987 and 1992. These passbooks show regular deposits of substantial amounts of money with regular withdrawals of around K2,300 which must have been loan repayments to the Bank. Of course these deposits and payments were not in relation to the vehicle the subject of this case as he had only just acquired that vehicle but they do show that the plaintiff was operating some kind of money earning business. And the evidence did show that he had been operating a bus business at least since 1987 and in 1989 seemed to be replacing one bus with a another one. From the evidence of the Bank it appears that the plaintiff was a reliable customer and an astute business operator. But is that sufficient evidence to satisfy what the Supreme Court states as sufficient evidence to establish damages in law. Damages in law must include adherence to the law such as the taxation laws. Thus if a person is making profits over and above the running and operating costs which or course would include salary then a person must file the appropriate tax returns and show such profits and pay the appropriate tax. The evidence is quite clear that the plaintiff did not keep any proper business records of income and expenditure and did not disclose any profit for taxation purposes. 

Therefore as no proper business records and no tax returns have been produced to the court to show any profit from the operation of the vehicle this court cannot find that there has been any such loss. The mere assertions and the depositing of sums of money in a bank is not sufficient evidence. 

I therefore assess damages of K1,033.19 being amounts other than the claimed loss of profits. Interest on that from 12 September 1990 to to-day is K418,25.

Judgment for K1,451.44.

Lawyer for the Plaintiff: P.M.Dowa
Lawyer for the Defendant: D.L.O’Connor