N2208

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS No. 853 OF 1995

MARCUS MONG
(Plaintiff)

-V-

JOHN SELOU
(First Defendant)

AND:

TRAISA TRANSPORT PTY LTD
(Second Defendant)

Mt Hagen : JALINA J
2001	: 9th April
2002	: 17th January

Counsel:
Mr. P. Kunai for the Plaintiff
Mr. M. Zimike for the Defendants

17th January 2002

DECISION

JALINA J: This is a claim for loss of income following a collision between the Plaintiff’s 15 – Seater Toyota Hiace bus Registration No. P8669 and a Kenworth Truck Registration No. AFH – 075 which was owned by the Second Defendant and driven by the First Defendant. The accident is said to have happened between Watabung and Daulo Pass along the Okuk Highway at about 12:30 p.m. on 24th March 1994. It is not disputed that there was a collision between the two vehicles. It is also not disputed that the Kenworth truck was used by the Second Defendant to carry heavy equipment and cargo for the Pogera Joint Venture Company to Pogera and is generally heavier than the Plaintiff’s vehicle.

The First Defendant who was travelling in front was climbing Daulo Pass and the Plaintiff’s vehicle which was driven by the Plaintiff himself was travelling behind the First Defendant. It is alleged by the Plaintiff that the First Defendant’s vehicle suddenly stopped, rolled backwards for about 12 metres and collided into his vehicle. He could not take evasive action because of stiff cliff on his side and another vehicle being very close behind him. As a result of the damage the Plaintiff was denied the use of his vehicle for about 5 months during which period he suffered loss of income of approximately K 21,600.00. 

The First Defendant said in evidence that the cause of his stopping suddenly was a fault in the flow of fuel to the engine. But he denied that it rolled 12 metres backwards. He said that his truck rolled backwards for only 50 centimetres. He maintained that if his vehicle had rolled backwards for 12 metres as alleged by the Plaintiff, the Plaintiff’s vehicle would have been extensively damaged in view of Kenworth trucks being heavy and that it was also heavily loaded at that time. Both the First Defendant and his witness Vavine Iga in denying that the vehicle was faulty stated that since they carried cargo for the Pogera Joint Venture Company, it was company policy that all its trucking contractors keep their vehicles properly and constantly serviced and maintained which they did. 

This claim is based on negligence. The trial relates to both liability and quantum of damages.

LIABILITY:

Although the First Defendant and his witness Vavine Iga have maintained that their vehicle was constantly serviced and maintained in accordance with the Pogera Joint Venture Company Policy, it is clear to me from the police accident report which is annexed to the affidavit of Sergeant H. Ararua (which was tendered unopposed) that the truck driven by the First Defendant was at fault. The fact that the First Defendant was not charged by police for any criminal offence under the Motor Traffic Act is irrelevant in so far as liability in tort is concerned.

 The police accident report clearly shows that if the truck driver had shifted the gear freely, the truck would not have rolled back sharply so the accident would not have occurred. The accident was therefore caused by the negligent driving of the First Defendant in the way he shifted the gear which in turn affected the flow of fuel into the engine. I accordingly find the Second Defendant vicariously liable for the negligent act of its employee, the First Defendant. 

I now proceed to assess the damages that I should award to the Plaintiff. 
DAMAGES:

It appears from his statement of claim that the Plaintiff is claiming judgment for the sum of K23,516.93 as well as general damages, economic loss, interest and costs. 

As the K23,516.93 seem to me to include loss of earnings which in effect is economic loss, such a claim as a separate head of claim is a duplication of claim and is therefore misconceived. His claim for general damages is also in my view misconceived, as he has not demonstrated to me by evidence the general damages he is entitled to be awarded or compensated for apart from economic loss.

With regard to the damage to the vehicle and the cost of repair, he has annexed to his affidavit filed herein on 19th June 1998, four (4) quotations. One is from Ela Motors for K1,878.82 and is dated 26th March 1994. One is from Lumbalumba Automotive Pty Ltd for K1,492.00 and is dated 30th March 1994. One is from PNG Automotive Pty Ltd for K1,981.55 and is also dated 30th March 1994 and the other one is from Ninka Motors for K610.00 and is dated 3rd July 1994.

The Plaintiff said in evidence that after the accident he contacted the Defendants and waited for 5 months to meet the cost of repair but when they failed, he took the vehicle to Ninka Motors which carried out the repairs for K680.00.

Notwithstanding his production of those quotations which he has been able to retain, he has not produced in evidence any receipts for the payments he made to Ninka Motors or any one else. In the absence of receipts evidencing payment for repairs I am of the view that they are mere assertions by the Plaintiff and that no repairs were actually carried out on his vehicle. 

Further more receipts for repairs carried out on vehicles are usually accompanied by documents showing the actual work that was carried out on the vehicle. Again no such document has been produced in evidence by the Plaintiff.

With regard to his loss of earnings he says in his affidavit that he was operating his vehicle as a Public Motor Vehicle (PMV) between Lae and Mt Hagen 6 days a week and was earning K180.00 per day. So for 4 weeks he says he was earning K4,320.00 and over a period of 5 months his earnings would have been K21,600.00.

This claim is similar to Graham Mappa –v- PNG Electricity Commission [1995] PNGLR 170. In that case a claim for damages for loss of income following damage caused to the plaintiff’s Isuzu 25 – seater passenger bus was made when it was involved in a collision with a vehicle owned by the defendant. Following an award of K7,800.00 in damages, the defendant appealed to the Supreme Court against such assessment. In allowing the appeal the Supreme Court found that the appellant did not establish his damages by calling of sufficient evidence and the mere statement by the Plaintiff that his business earned K1,200.00 per week was not accepted. There was no documentary or other kind of evidence to establish that fact, apart from some comparison with other similar business run by someone else. There were no bank records, or balance sheets or other kinds of evidence and in the Supreme Court’s judgment, that was not sufficient to establish the damages in law. (See summary by Woods J of the Supreme Court decision in the above case at p171)

Woods J went on also at p171 and said:

‘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, for example, producing such records as are required by law. If you wish to have the advantages of a modern world of business, then you must comply with the modern matters like tax laws. This would require appropriate business records to show whether any profit over and above business running costs are earned. And then, if a profit was earned, there are the requirements to pay taxes. The courts have been referring to these 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.’ 

In the above case, Woods J in re-assessing damages after the matter was remitted by the Supreme Court only awarded K1,451.44 being K1,033.19 in damages and K418.25 interest. The claimed loss of profit was not awarded, as the plaintiff did not prove any such loss. 

In the case before me, I can find no evidence of loss of earnings or economic loss. No bank statements, passbooks or other documentary evidence has been produced to show the rate of his earnings per week or per month from which it can be ascertained the he was earning that kind of money per week or per month.

On the basis of the quotations he has produced in evidence it is clear that his vehicle did sustain those damages and that such damages were sustained as a consequence of the negligent driving of the First Defendant. However in the absence of independent evidence that the vehicle was stationary for 5 months I am of the opinion that the Plaintiff was using his vehicle and earning income. For the damage sustained by his vehicle which would have affected his earnings as the quotations do reveal damage to his windscreen and headlights, I would consider a fair award to be K5,000.00 which I so make. This amount is slightly higher than the amounts in the quotations.

Interest at 8% per annum on that amount is awarded from 21st September 1995 when the writ was issued to today which is a period of approximately 6.4 years. Such interest is K2,560.00. So the total award I make to the Plaintiff is K7,560.00.

I order the Defendants to pay the Plaintiff K7,560.00. If the Defendants do not pay the full amount within 6 months from today, interest shall run at 8% per annum till paid.

The Plaintiff’s costs shall be paid by the Defendants to be taxed if not agreed.
______________________________________________________________________
Lawyer for the Plaintiff: Kunai & Co. Lawyers
Lawyer for the Defendants: Paulus M. Dowa Lawyers