N3780

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 144 OF 2008

BETWEEN

PNG PORTS CORPORATION LIMITED
Plaintiff

AND

ISLANDS SALVAGE AND TOWAGE LIMITED
Defendant

Kokopo: Makail J,
2009: 10th & 22nd July

DAMAGES - Assessment of damages - Liability determined by entry of default judgment - Matters relating to liability resolved - Damage to wharfs rubber fenders - Claim pursuant to an indemnity agreement - Claim for cost of repairs - Proof of - Whether corroboration of loss required - Claim established on balance of probabilities - Damages awarded.

EVIDENCE - Expert evidence - Principles of determining expert witness discussed - Dispute as to durability of rubber fenders - Opinion evidence of durability of rubber fenders - Whether opinion of durability of rubber fenders reliable - Opinion evidence unreliable and rejected.

Cases cited:

Yange Lagan -v- The State (1995) N1369
Jonathan Mangope Paraia -v- The State (1995) N1343
Firman Manua -v- Southern Highlands Provincial Government (2008) N3505
Coecon Limited -v- National Fisheries Authority (2002) N2182
Peter Aigilo -v- Sir Mekere Mourata & The State (2001) N2102
Enga Provincial Government -v- Roland Arlo (2002) N2271
Andrew Tony -v- The State (2008) N3477
Michael Kunumb -v- The State (2008) N3481
Albert Baine -v- The State (1995) N1335
Kopung Brothers Business Group -v- Sakawar Kasieng [1997] PNGLR 331
James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486
Brian McKenna -v- Nicholas Clarke [1980] PNGLR 175 
Andrew Kewa -v- Johnny Lus & Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14th March 2007)

Text:

Evidence, Commentary and Materials, Law Book Co (5th ed 1998) Waight K P and Williams R C

Counsel:

Mr M. Ginyaru, for the Plaintiff
Mr P. Yange, for Defendant

JUDGMENT

22nd July, 2009

1. MAKAIL J: This matter comes before the Court for assessment of damages only because default judgment was entered against the Defendant on 05th September 2008 after the Defendant failed to file its defence within the time prescribed under the National Court Rules. 

2. The claim is for cost of repairs incurred by the Plaintiff in replacing three newly fitted rubber fenders that the Defendant’s vessel, a Dump Barge called Kinglory No 88 damaged during un-berthing at the Plaintiffs wharf at Rabaul. The basis of the claim for cost of repairs is under an Indemnity Agreement entered between the Plaintiff and the Defendant on 29th June 2007 for the Defendant to use part of the Plaintiffs wharf for berthing its Dump Barge. Pursuant to the Indemnity Agreement, the Defendant agreed to indemnify the Plaintiff against any loss or damage that maybe suffered by the Plaintiff for the use of the wharf.

3. On 30th June 2007, at about 10 o’clock in the morning, after unloading its cargoes, the Dump Barge during the process of un-berthing damaged three newly fitted rubber fenders. One of them was completely ripped off. Following the damage, the Plaintiff, relying on the Indemnity Agreement, notified the Defendant to pay for the costs of the damage, said to be K17,652.80. Despite numerous requests for payment of K17,652.80 by letters to the Defendant, the Defendant failed to pay. This led to the Plaintiff instituting this action.

4. In support of the claim, the Plaintiff relies on the following Affidavits which were admitted by consent as evidence for the Plaintiff:

1. Affidavit of John Tungapik sworn and filed on 18th July  2008.  (Exhibit "P1");

2. Affidavit of Elias Pauria sworn and filed on 18th July 2008.  (Exhibit "P2");

3. Affidavit of Lawrence Patlo sworn and filed on 18th July    2008.  (Exhibit "P3").

4. Affidavit of George Fakepo sworn 30th January 2009 and  filed on 3rd February 2009. (Exhibit "P4").

5. As for the Defendant, it relies on the Affidavits of the following persons which were also admitted by consent as evidence for the Defendant:

1. Affidavit of Sup Kit Poorahong sworn on 16th March 2009 and filed on 17th March 2009. (Exhibit "D1"); and

2. Affidavit of Jurgen Ruh sworn on 11th March 2009 and filed on 12th March 2009. (Exhibit "D2").

6. From the evidence presented thus far, the issue is whether the Plaintiff has proven its loss against the Defendant. For it is settled law in this jurisdiction that the Plaintiff bears the onus of proving his or her loss on the balance of probabilities, even though liability is not in issue. There are many case authorities that make this principle of law abundantly clear, some of which both counsel have cited in their respective written submissions which I respectfully adopt here like, Yange Lagan -v- The State (1995) N1369; Jonathan Mangope Paraia -v- The State (1995) N1343; and Firman Manua -v- Southern Highlands Provincial Government (2008) N3505.

7. From my reading of the Affidavits of the witnesses of the Plaintiff and also the Affidavits of the two witnesses of the Defendant, it is clear that the parties entered into an Indemnity Agreement on 29th June 2007 for the Plaintiff to allow the Defendant to berth its Dump Barge at the Rabaul wharf in return for a fee. It is also clear that one of the terms of the Indemnity Agreement is that, the Defendant shall indemnify the Plaintiff of any loss suffered by the Plaintiff. The relevant part reads as follows:

"to indemnify the Papua New Guinea Harbours Board, and keep it indemnified, from and against any loss, damage or injury to any person or property (including any property of the Board) caused by or arising directly or indirectly out of or incidental to the berthing, movement or un-berthing of the vessel or the loading, discharging, stacking, storage, handling or movement of cargo on, destined for or discharged from the vessel, whether carried out by a wharfinger employed by it or on its behalf or stevedores engaged by it or on its behalf, notwithstanding that the loss, damage or injury takes place in a wharf, she or other places vested in the possession of or occupied by the Plaintiff and in particular, (without affecting the generality of the foregoing) to indemnify the Board of:

(a) all actions, proceedings, claims and demands brought, in relation to such loss, damage or injury against the Board, and

(b) all damages, costs and expenses incurred or sustained by the Board as a result of, or in connection with, any such loss, injury or damage."

8. But it is disputed that the Defendant’s Dump Barge damaged the three newly fitted rubber fenders and one of them was completely ripped off. It is also disputed that the cost of repairs is K17,652.80. 

9. The Plaintiffs witnesses have given sworn evidence that the Dump Barge damaged the three newly fitted rubber fenders and one of them was completely ripped off. For example, first, in his Affidavit (Exhibit "P2"), Elias Pauria says that he is employed as Wharf Superintendent at the Rabaul Port and witnessed the Dump Barge damaged the three rubber fenders. He says that on 30th June 2007 at around 10’o’clock in the morning, as the Dump Barge was un-berthing from the wharf, it proceeded forward and the starboard side seriously damaged the three rubber fending system and one of them was completely ripped off from the base plate before it left the berth.

9. Soon after the incident, he reported it to the Port Manager by submitting a report on 02nd July 2007; a copy of that report is marked as Annexure "A" to his Affidavit. He further states that the Defendant’s Managing Director, Mr Jurgen Ruh’s claim that the Dump Barge did not damage the rubber fenders is hearsay because he was not present at the wharf when the incident happened.

10. Secondly, it is the evidence of the Port Manager of Rabaul Port, John Tungapik in his Affidavit (Exhibit "P1") that the Defendant was granted its application to berth one of its vessel at the wharf at the Rabaul Port and one of the conditions of the application was to indemnify the Plaintiff against any loss or damage to the Plaintiffs wharf and property at the wharf. He received a report from Elias Pauria in respect of the damage of the three rubber fenders by the Defendant’s Dump Barge. On 10th July 2007, he forwarded a letter of notice to the Defendant notifying it of the damage to the three rubber fenders by the Dump Barge. The letter concluded by stating, "You are now notified that you will be held liable for the cost of repairs and you will be advised of the estimate cost of repairs."

11. Subsequent to that letter, the works officers inspected the damage and assessed the cost of repairing it at about K18,000.00. They submitted a report to him and on 19th July 2007, he forwarded another letter to the Defendant. This time, he notified the Defendant of the estimated cost of repairs of K18,000.00 and sought the Defendant’s advice as to whether the Defendant would repair the damage at its own costs and if no response was received within 21 days, the Plaintiff would assume that it would repair the damage and charge the cost of repairs to the Defendant to pay later. Copies of the said letters of 10th July 2007 and 19th July 2007 are marked as Annexures "C" and "E" respectively to his Affidavit.

12. Following the letter of 19th July 2007, the Plaintiff did not receive any response from the Defendant. As it was important for the Plaintiff to replace the three rubber fenders quickly to allow vessels to berth and un-berth safely, the Plaintiff went ahead and repaired them by buying three new ones and installing them on the wharf at a costs of K17,652.80. After replacing them, he requested the Defendant to pay the cost incurred by the Plaintiff by forwarding a Sundry Charges Invoice No 072041 dated 22nd August 2007 to the Defendant. A copy of the Sundry Charges Invoice is marked as Annexure "G" to his Affidavit.

13. Despite forwarding the Sundry Charges Invoice to the Defendant, the Defendant failed to pay the K17,652.80 which comprised costs of:

1. Labour at 10 hours at K20.00 per hour	K 200.00	
2. Materials	K14,544.00	
3. 20%	K 2,908.80	
Total	K17,652.80	

14. A number of follow ups to the Defendant also failed.

15. Thirdly, Lawrence Patlo is the Works Officer of the Plaintiff. Excluding paragraphs 3 and 4 as being hearsay, he states in paragraphs 5 and 6 of his Affidavit (Exhibit "P2") that he was responsible for installing the three rubber fenders that were damaged by the Dump Barge. He had installed them in June 2002. He says that this was about 4 and a-half years ago before the incident of 30th June 2007. According to him, these rubber fenders have a durability of 6 to 7 years.

16. Finally, George Fakepo is the Senior Engineer of the Plaintiff and based at the head office in Port Moresby. In his Affidavit (Exhibit "P4"), he says that he is responsible for all maintenance works of the Plaintiffs Port facilities including coordination of all maintenance works that needed to be done at various ports in the country. 

17. He is aware of this case because prior to the incident of 30th June 2007, the rubber fenders at the wharf at Rabaul Port had deteriorated to a state of no return that he had to order 16 new rubber fenders from a supplier in Japan in March 2001. The specific type of rubber fender required for use is described as Beta-400H X 1000L. The supplier, called Sumitomo Rubber Industries Limited sent them to the Plaintiff to replace those that have deteriorated. It had cost US$850.00 for 1 and for 16 of them, US$13,600.00. When US$850.00 was converted to PNG Kina then, it had cost around K2,773.25 and for 16 of them, K44,371.94. They arrived at Rabaul on or about 12th June 2001 and were installed on the wharf in June 2002.

18. As for the cost of replacing the three rubber fenders, he says that the quoted price he has received from the supplier’s agent in Australia is US$5,175.00 per rubber fender and this is an increase from the last time the Plaintiff had purchased the rubber fenders in 2001. See Annexure "C" to his Affidavit (Exhibit "P4"). But the Plaintiff is content with the amount of US$850.00 per rubber fender and has charged the Defendant on the 2001 purchase price.

19. The evidence of Jurgen Ruh in his Affidavit (Exhibit "D1") is that, he is the Managing Director of the Defendant. Even though he had requested the Plaintiff to inspect the three damaged rubber fenders and did attend at the wharf to inspect them on 18th September 2007, none of the staff of the Plaintiff took him to see the damaged rubber fenders, which he claims were stored in a store room at the wharf premises. As a result, he says that there is simply nothing that the Defendant could be asked to pay. In any case, he says that even if the three rubber fenders were damaged, there is no report from an independent loss adjuster in respect of the cost of the repairs in order to justify the Plaintiffs claim of K17,652.80.

20. The other witness for the Defendant, Sup Kit Poorahong says in his Affidavit (Exhibit "D2") that he holds Master 1 ticket and is the Captain of the Defendant’s Dump Barge. He was at the wharf on 30th June 2007, on board the Dump Barge loading cargoes and did not see it damage the three rubber fenders. If there was indeed damage done to the three rubber fenders at the wharf by the Dump Barge, he would have been the first person to know. Since there was no damage done, that explains why he was not aware of the Dump Barge damaging the three rubber fenders.

21. As I have alluded above, the Plaintiff bears the onus of proving its loss on the balance of probabilities. Can it be said that the Plaintiff has proven its loss on the balance of probabilities in the present case?

22. First, the Defendant contents that although Mr Ruh had requested the Plaintiff to inspect the three damaged rubber fenders and did attend at the wharf on 18th September 2007, none of the staff of the Plaintiff had shown him the damaged rubber fenders, hence there is nothing for which the Defendant is to compensate the Plaintiff. Secondly, Mr Poorahong was in the Dump Barge on 30th June 2007 and did not see it collide into the three rubber fenders, hence there is also nothing for the Defendant to compensate the Plaintiff.

23. I reject these contentions because they go to the issue of liability rather than assessment of damages. The fact that default judgment has been entered against the Defendant precludes it from denying liability and any denial by the Defendant in any shape or form like here, where Messrs Ruh and Poorahong claim that first, since Mr Ruh did not inspect the damaged rubber fenders and secondly, since Mr Poorahong did not see the Dump Barge collide into the rubber fenders on that day, are to my mind matters falling short of raising a defence of general denial. Since default judgment has been entered, the only question for determination here is the damages that flow from the damage of the three rubber fenders. See Coecon Limited -v- National Fisheries Authority (2002) N2182.

24. Accordingly, it is an abuse of process for the Defendant to deny the claim and I will not permit the Defendant to challenge the Plaintiffs claim in this shape or form. I reject its contentions for this reason. 

25. The Defendant’s second contention is an extension of the first contention and that is, Mr Ruh has rebutted or refuted the Plaintiffs witnesses’ evidence that the Dump Barge had damaged the three rubber fenders. As such, it submits that Plaintiffs witnesses’ evidence have been rebutted or refuted by the Defendant. In such a case, since the staff of the Plaintiff did not either invite Mr Ruh or the Defendant’s lawyers to inspect the damage of the three rubber fenders, the Court find in favour of Defendant that the three rubber fenders were not damaged. In his written submission, the Defendant’s counsel refers to cases like Peter Aigilo -v- Sir Mekere Mourata & The State (2001) N2102; Enga Provincial Government -v- Roland Arlo (2002) N2271; Andrew Tony -v- The State (2008) N3477 and Michael Kunumb -v- The State (2008) N3481 to support his contention that un-rebutted or unchallenged evidence of witnesses are un-controvertible evidence and go to prove allegations of fact which the Court should accept and find in favour of the Defendant.

26. I also reject this contention by the Defendant because it is clear that the Plaintiffs witnesses’ evidence have been rebutted or refuted by Mr Ruh where he says that no rubber fenders were damaged because none of the Plaintiffs staff were available to show him the three damaged rubber fenders when he attended at the wharf on 18th September 2007. In my view, the cases which counsel for the Defendant has referred to at pp 12 and 13 of his written submissions and which I have cited above are inapplicable in this case because in each of the cases, no evidence was offered to rebut or refute the evidence of the Plaintiff and the Court had accepted the Plaintiffs evidence as uncontested evidence to make appropriate findings. 

27. This is not a case where the Plaintiffs witnesses’ evidence have not been rebutted or refuted by the Defendant, thus the Court is entitled to accept them as unchallenged evidence proving the allegations of fact against the Defendant. This is a case where the Defendant’s witnesses, have refuted them. Where there are conflicting evidences, the Court must make appropriate findings of fact and this is a case where there are conflicting evidences from both sides and the Court must make appropriate findings of fact in respect of the damage of the three rubber fenders. Thus, it is not correct for the Defendant to say that Mr Ruh’s evidence in respect of the three damaged rubber fenders is un-rebutted or un-refuted and should be accepted by the Court to find that there was no damage. I dismiss this contention.

28. Having rejected the Defendant’s contention, and as I have said above and will repeat again, it is my respectful opinion that such a contention goes to the question of liability of the Defendant and as noted, liability has been settled by entry of default judgment on 05th September 2008. Therefore, I consider the evidence of Mr Ruh and submissions in relation to denying the damage of the three rubber fenders irrelevant and misconceived. The effect of rejecting Mr Ruh’s evidence in so far as the denial of the damage of the three rubber fenders by the Dump Barge is concern is that, it leaves the evidence of the Plaintiffs witnesses un-rebutted or un-refuted in so far as the damage to the three rubber fenders by the Dump Barge is concern. In other words, there can be no dispute as to whether the damage of the three rubber fenders occurred as that issue has been settled by the entry of default judgment on 05th September 2008 and it follows that the only issue is whether the Plaintiff has proven its loss on the balance of probabilities. 

29. I now turn to the second contention by the Defendant and that is, there is no independent evidence from a loss assessor to corroborate the Plaintiffs claim of K17,652.80. It contents that in a case where the Plaintiff is claiming cost of repairs of the damaged rubber fenders, it is obliged to verify the cost by someone neutral and independent. To support its contention, it refers to the cases of Albert Baine -v- The State (1995) N1335; Kopung Brothers Business Group -v- Sakawar Kasieng [1997] PNGLR 331; and James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486.

30. In my view, the Defendant’s contention is again, misconceived. This is not a case where the Plaintiff is claiming for loss of profit where the Plaintiff is required to call independent evidence to corroborate its evidence in respect of loss of profit. It is also not a case where the Plaintiff is claiming for property destroyed in a police raid where it is generally difficult to produce receipts of payments for the destroyed or damaged property, hence the Court would require evidence of an independent assessor to put a value on the loss of property. This is a case were the Plaintiff is claiming costs of repairs for replacing three damaged rubber fenders pursuant to its right under the Indemnity Agreement with the Defendant.

31. The cases which the Defendant’s counsel has referred to at p 9 of his written submission and which I have cited above relate to claims for loss of property and loss of profit as a result of tortuous actions by the Defendants in each case. But as I said above, this is a case where the Plaintiff is simply claiming cost of repairs of the three damaged rubber fenders and nothing more. Therefore, I do not see any merit in the Defendant’s call for more evidence when there is evidence from Mr Tungapik in Annexures "A1"and "A2" to his Affidavit (Exhibit "P4"), showing the purchase price of one rubber fender in 2001.

32. In this respect, I note that the Defendant does not challenge the price quoted by the supplier in 2001 but challenges the total cost of repairs of K17,652.80 on the basis that it is not corroborated by an independent assessor. These two challenges are not the same. One goes to challenge the purchase price of a rubber fender as quoted by the supplier whilst the other goes to challenge the assessment of the cost of repairs. Since the Defendant takes no issue with the purchase price quoted by the supplier in 2001, it remains unchallenged. 

33. In any case, I am satisfied based on the evidence of Mr Fakepo that the cost of replacement of the three damaged rubber fenders is not fabricated or simply made up but based on past experiences of the Plaintiffs business relationship with its supplier based in Japan where it had previously purchased rubber fenders. The supplier is Sumitomo Rubber Industries Limited. Given the concession made by the Plaintiff, I accept that the cost of one rubber fender is US$850.00 or when converted to PNG Kina, K4,848.00 and for three, K14,544.00. This is a reduction by US$4,325.00 if US$850.00 is deducted from the current purchase price of US$5,175.00 per unit. In my view, this is a drastic reduction of the total costs.
 
34. But the Defendant challenges the cost of K17,652.80. That is, whether it truly represents the value of the damaged rubber fenders as at the date of damage, that is as at 20th June 2007. Put it the other way, the Defendant’s contention as I understand it is that, it should not be liable for the full cost of replacement of the three rubber fenders because at the time they were damaged, they were old and worn out. They were not durable at the time of damage. To maintain this contention, it contents that Mr Patlo is not an expert witness in order for him to give opinion evidence of the durability of the rubber fenders. Such evidence should come from an expert in the field of marine engineering and even if Mr Patlo is an expert, he does not state his qualification, experience and expertise in order for the Court to safely rely on his opinion as to the durability of the rubber fenders.

35. There seems to be some merits in the contention of the Defendant. I agree with the submission of the Defendant’s counsel that in respect of the law on calling of expert evidence. At p 10 of his written submissions, he refers to a text - Evidence, Commentary and Materials, Law Book Co (5th ed 1998) Waight K P and Williams R C at p 649, where the learned authors described an "expert witness" as:

"There are thus two essential preconditions to be fulfilled for a person to qualify as an expert; (a) is the subject matter of the witness’s evidence an area for expert evidence; and (b) is the witness actually skilled through study and/or experience in that area? Precondition (a) probably depends on a number of factors which include (i) whether the matter is one which lies within a filed of expertise (that is, a subject of special study or knowledge), although whether the theory of the expert need to have some measure of acceptance or should be sufficiently reliable has not been resolved by the Courts; (ii) whether the matter is one in which the jury could derive assistance from and expect, as opposed to a matter of common knowledge with the jury could equally well determine for themselves; and (iii) whether the expert’s opinion is founded on rational and demonstrable criteria or whether it merely conjectural."

36. Applying strictly the above principles in respect of determining an expert witness, I accept the Defendant’s contention that the damage of the rubber fenders fall into a technical area of engineering which will require an expert in the field to give an opinion as to the durability of the three rubber fenders. To my mind, these rubber "objects" are no ordinary "objects". They are made to withstand the pressure from any vessel that comes in and out of berthing at the wharf at any given time. Thus, it is instructive to note and must be emphasized here too that it is not disputed that the three rubber fenders were replaced almost 4 and half years ago before the incident, hence it is very important to determine whether or not they were worn out at the time of the incident or they were in good condition then. This is where the evidence of an expert becomes relevant.

37. In the present case, it is clear that Mr Patlo does not state in his Affidavit (Exhibit "P3") his qualification and experience. He only says that he is a works officer and states that he was involved in the installation of the rubber fenders in June 2002. He also gives an opinion of the durability of the rubber fenders by saying that they would last for 6 to 7 years. In my respectfully opinion, Mr Patlo has given an opinion of the durability of the rubber fenders which only an expert in the engineering field would give such an opinion. I do not know if Mr Patlo is an expert in this field because he has not given his credentials. In my view, this makes his opinion unreliable for the Court to find that the three damaged rubber fenders were actually in good condition or durable at the time of the incident. I reject his evidence in so far as his opinion as to the durability of the three damaged rubber fenders is concern. 

38. That means, I am not satisfied that the three damaged rubber fenders had a durability of 6 to 7 years before they needed to be replaced. In my view, it would not be wrong to say that at least they were worn out at the time of the incident or were suffering from wear and tear since they have been in use for 4 and a-half years. But, does that mean that the Plaintiff shall have "nothing" for the loss it has suffered? Should I refuse the Plaintiffs claim for cost of repairs in its entirety? I do not think so. I have to strike a balance here because the Plaintiff has incurred cost of K17,562.80 in replacing them and the Defendant cannot simply walk away without paying some of the cost incurred in putting up new ones. 

39. The Defendant contents that even then, the Plaintiff has not corroborated its evidence that the cost of repairs of the three damaged rubber fenders is K17,652.80 by calling evidence from either a marine specialist or independent loss adjustor in relation to the "actual value of the fenders up to the date of the alleged incident." In my view, the cases of Brian McKenna -v- Nicholas Clarke [1980] PNGLR 175 and Andrew Kewa -v- Johnny Lus & Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14th March 2007) which the Defendant’s counsel has referred to in his written submission to support the contention that there must be a pre accident report to verify the claim of K17,652.80 can be distinguished from this case. 

40. First, in Brian McKenna’s case (supra), the Court awarded the pre accident value of the Plaintiffs yacht which sank through the negligence of the Defendant whose vessel’s rope entangled the propellers of the Plaintiffs yacht, thereby causing the Plaintiffs yacht to sink. The Court found the Defendant liable because he breached his duty of care in failing to secure the rope of his vessel resulting in the sinking of the Plaintiffs yacht. The Court had to decide between awarding costs of repairing the yacht as "the vessel was a constructive total loss" because it sunk and when it was salvaged, it was "not worth the expense to rebuilt it" and the pre accident value which was much lesser than the "constructive total loss". The Court accepted the pre accident value and awarded an amount of K16,000.00 as at the date of its launching including others costs as "the constructive total loss".

41. Secondly, the case of Andrew Kewa (supra) can also be distinguished from the present case. In that case, the Plaintiff sued to recover damages from the Defendant for the loss of his motor vehicle. He claimed the pre accident value of the motor vehicle at K50,000.00 and the Court awarded him that amount.

42. In the present case, the Plaintiff claims cost of repairs of the three damaged rubber fenders. It says the cost is K17,652.80 inclusive of labour and 20% mark up. That is the cost for replacing the three damaged rubber fenders. According to Mr Fakepo’s evidence, the cost of K17,652.80 (actually K14,544.00) is grossly undervalued because the current purchase price of a rubber fender is US$5,175.00 inclusive of costs of insurance and freight. Therefore, the Plaintiffs claim for costs of replacement is less than the actual purchase price today. For this reason, I do not see any need for evidence of a pre accident report to be produced by the Plaintiff or evidence from an independent loss assessor to verify the Plaintiffs claim for cost of repairs. 

43. In any case, if the Defendant disputes the amount of K17,652.80 (or K14,544.00), then it’s obliged to call evidence to refute the Plaintiffs claim such as calling an independent expert witness like a loss assessor. It has not done that here, so the Court is left with the un-refuted evidence of the Plaintiff and must accept it as the cost of repairs. Furthermore, the Plaintiffs claim for the cost of repairs is made pursuant to the Indemnity Agreement. I have set out in full the relevant part above. The effect of the Indemnity Agreement is that, the Defendant shall pay for any loss or damages that the Plaintiff may suffer. In my view, Indemnity Agreement does not require the Plaintiff to obtain a report from an independent loss assessor as to the cost of repairs. 

44. As I have alluded above, the Plaintiff has made concession by not claiming cost of the three damaged rubber fenders at the current purchase price (US$5,175.00 per rubber fender). If it does, no doubt the amount would "double" the amount presently claimed. In my view, the concession made by the Plaintiff accommodates the Defendant’s concern as to the pre accident value or replacement value of the rubber fenders as at the date of the incident. That is to say, the value of the life span of the three damaged rubber fenders have been taken into account, therefore, I do not see any basis for a further reduction of the cost. I will award the amount claim.

45. For these reasons, I am satisfied that the Plaintiff has proven its loss on the balance of probabilities and entered judgment in the sum of K17,652.80. I award 8% interest from the date of issue of the Writ of Summons of 20th February 2008 to the date of judgment of 22nd July 2009. This is because it will compensate the Plaintiff for having to wait that long. This equates to K1,884.69.

46. The final judgment of the Court is, judgment is entered against the Defendant in the total sum of K19,537.49 inclusive of 8% interest. The Defendant shall also pay the Plaintiffs costs of the entire proceeding to be taxed if not agreed. Time for entry of the orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.

________________________________________

In House Counsel: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant