N4103

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 647 OF 2007

FELIX KUA
Plaintiff

V

CLEMENT PATIKEN
First Defendant

DAVID VIA
Second Defendant

Kimbe: Cannings J
2009: 10 December,
2010: 25 June

JUDGMENT

DAMAGES – negligence – motor vehicle collision – defendants' truck negligently collided with plaintiff's vehicle – plaintiff claims damages for: damage to vehicle; distress and anxiety; punitive damages.

DAMAGES – assessment of damages after entry of default judgment – role of trial judge – whether issue of liability can be revisited.

The second defendant's truck, which was driven negligently by the first defendant, collided with the plaintiff's vehicle. Liability was established by entry of default judgment and a trial was held on assessment of damages. The plaintiff claimed three heads of damage: damage to the vehicle; distress and anxiety; and punitive damages. The defendants argued that the plaintiff should be awarded nothing because: he was negligent and was the person who caused the collision; the plaintiff did not own the vehicle that he was driving; the vehicle was unregistered; by the time of the trial, the vehicle had been sold to a third party. In the alternative the defendants argued that the amount of damages claimed was exorbitant.

Held:

(1)	The role of the trial judge assessing damages after entry of default judgment is restricted to making a cursory inquiry into the circumstances in which liability was established so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity. If it is reasonably clear what the facts and cause of action are, liability should be regarded as proven.

(2)	Here, it is clear what the facts and cause of action are. Therefore liability was accepted as proven against the defendants.

(3)	The defendants' assertion that the plaintiff should be awarded nothing was rejected as it was based on arguments that attempted to reopen the issue of liability.

(4)	The plaintiff was awarded the following sums:

•	Repair to vehicle:        K25,000.00
•	Distress and anxiety:   0
•	Punitive damages:       0
•	Total damages =          K25,000.00 +
•	Interest:                        K4,400.00
•	Total judgment sum = K29,400.00

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Alex Latham & Kathleen Latham v Henry Peni (1990) N1463
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
George Kala v Joseph Kupo (2009) N3677
James Koimo v The State [1995] PNGLR 535
Jonathan Mangope Paraia v The State (1995) N1343
Kenneth Bromley v Finance Pacific Ltd (2001) N2097
Kerr v MVIT [1979] PNGLR 251
Mel v Pakalia (2005) SC790
Niugini Civil & Petroleum Ltd v West New Britain Development Corporation Ltd (2008) N3292
Performance Cars v Abraham [1962] QB 33

TRIAL

This was a trial on assessment of damages.

Counsel

R Awalua, for the plaintiff
J K Abraham, for the defendants

25 June, 2010 

1. CANNINGS J: This case arises out of a collision between:

•	a Toyota Hilux driven by the plaintiff, Felix Kua; and

•	a Mitsubishi Dyna PMV truck driven by the first defendant, Clement Patiken, and owned by the second defendant, David Via.

2. The collision occurred at Nahavio, on the Kimbe-Hoskins Highway, on 28 April 2007. The plaintiff was driving towards Kimbe and the first defendant was driving from Kimbe. At the Mosa junction, the first defendant turned right and the oncoming Toyota collided with the rear of the Dyna. The Toyota was extensively damaged.

3. The plaintiff sued the defendants, claiming damages for negligence. The defendants filed a defence and cross-claim, claiming that the plaintiff was in the wrong. He was drunk and speeding and caused the collision, they claimed.

4. The question of liability came before Kandakasi J in June 2009. After finding that the defendants had failed to comply with the Court's directions as to pre-trial procedures, his Honour entered judgment in favour of the plaintiff with damages to be assessed and dismissed the cross-claim.

5. The matter has come before me as a trial on assessment of damages. The plaintiff is claiming:

•	the cost of repairs to the Toyota, K38,909.20; and
•	damages for distress and anxiety, K20,000.00; and
•	punitive damages, K15,000.00; being
•	a total damages claim of K73,909.20, plus interest.

6. The defendants say that the plaintiff should be awarded nothing because: he was negligent and was the person who caused the collision; the plaintiff did not own the vehicle that he was driving; the vehicle was unregistered; and, by the time of the trial, the vehicle had been sold to a third party. In the alternative the defendants argue that the amount of damages claimed is exorbitant.

7. I will first address the issue of whether the plaintiff should be awarded nothing and then consider each head of damage.

SHOULD THE PLAINTIFF BE AWARDED NOTHING?

8. I reject this argument as all of the submissions in support of it attempt to reopen the issue of liability, which has already been decided against the defendants by the entry of judgment on liability. The role of a trial judge assessing damages after entry of default judgment (which is an apt description of the judgment on liability in this case) is restricted to making a cursory inquiry into the circumstances in which liability was established so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity. If it is reasonably clear what the facts and cause of action are, liability should be regarded as proven (Mel v Pakalia (2005) SC790).

9. Here, it is clear what the facts and cause of action are. Therefore liability must be accepted as proven against the defendants and I will now assess the three heads of damage claimed.

COST OF REPAIRS TO THE TOYOTA

10. The plaintiff has adduced evidence of the result of the collision by providing photos of the damaged Toyota, a police accident report and quotes from two motor vehicle repairers. SWT Panel & Auto Repairers quotes K38,909.20 and Kulex Auto Repair Workshop quotes K34,760.00. The plaintiff says he 'prefers' the SWT quote, presumably because it is the highest. However, I have three difficulties regarding this quote as the proper basis for an estimate of the cost of repairs.

11. First, there should have been at least three quotes. There is no law that says there must be three quotes but it is the normal practice and failure to follow it casts doubt over the veracity of the claim. Secondly, it would have been better to have an estimate of the cost of repair provided by a qualified insurance assessor. Again there is no legal requirement to that effect but it would have brought a greater element of independence into the evidence that was being placed before the court if an independent assessment were provided. Thirdly, it is not clear from the evidence that all of the repairs for which quotes were provided were necessitated by the collision of 28 April 2007. The plaintiff is only entitled to be compensated for damage that was actually caused by the defendants' negligence. He does not get compensated for the cost of repairs that would have already been required in the absence of the defendants' negligent conduct (Performance Cars v Abraham [1962] QB 33).

12. For those reasons I do not accept the amount claimed by the plaintiff. It does not follow from this, however, that he should be awarded nothing. The court will always do the best it can, on the evidence available, if a plaintiff is unable to corroborate his entire claim (Jonathan Mangope Paraia v The State (1995) N1343; Niugini Civil & Petroleum Ltd v West New Britain Development Corporation Ltd (2008) N3292). I will allow a sum of K25,000.00.

DAMAGES FOR DISTRESS AND ANXIETY

13. The plaintiff says that immediately after the collision he was assaulted by some of the passengers on the Dyna and that he has suffered trauma as a result of what happened. He regards the collision as a near-death experience and seeks compensation for the distress and anxiety he has suffered.

14. There is no medical evidence to support this claim but even if there was the type of injury for which damages are sought falls within the meaning of "bodily injury" for the purposes of the Motor Vehicles (Third Party Insurance) Act Chapter No 295. The significance of this is that a claim for damages cannot be made against the driver or owner of the vehicle. It must be made against the compulsory third party insurer, Motor Vehicles Insurance Limited (MVIL) (Kerr v MVIT [1979] PNGLR 251, per Pritchard J at p 278). Section 54(1) (claim for damages) is the key provision. It states:

Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of—

(a)	a motor vehicle insured under this Act; or

(b)	an uninsured motor vehicle in a public street; or

(c)	a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the successor company and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.

15. I therefore dismiss this claim for two reasons: lack of evidence and failure to comply with the Motor Vehicles (Third Party Insurance) Act. The amount assessed is zero.

PUNITIVE DAMAGES

16. Better known as exemplary damages, punitive damages are a special category of damages which are awarded for the purpose, not of compensating a plaintiff, but of punishing a defendant – the wrongdoer – for a particularly egregious or wilfully wrongful act, as distinct from a less severe form of wrongful conduct. It provides a deterrent against similar conduct by others (Alex Latham & Kathleen Latham v Henry Peni (1990) N1463; James Koimo v The State [1995] PNGLR 535; Abel Tomba v The State (1997) SC518; Kenneth Bromley v Finance Pacific Ltd (2001) N2097; George Kala v Joseph Kupo (2009) N3677).

17. I see nothing in the facts of this case to warrant an award of exemplary damages. I am unaware of any negligence case concerning a motor vehicle collision that has given rise to an award of exemplary damages. None was brought to my attention. The amount assessed is zero.

SUMMARY OF DAMAGES AWARDED

18. I make no deduction from the amounts assessed on account of contributory negligence (as the defendants' claim in that regard has been neutralised by the unqualified entry of judgment on liability) or failure to mitigate losses (as there is no evidence that the plaintiff has failed to attempt to lessen the intensity of his losses). The amounts awarded are those assessed:

•	Repair to vehicle:      K25,000.00
•	Distress and anxiety: 0
•	Punitive damages:     0

•	Total damages =       K25,000.00.

INTEREST

19. In the statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

(1)	Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2)	Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

20. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

21. I exercise that discretion in the following way:

1 	A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.

2 	The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.

3 	Interest should be payable on the whole of the sum of damages for which judgment is given.

4	The commencement date for the appropriate period will be when the cause of action accrued, 28 April 2007. The end of the period is the date of judgment, 25 June 2010. The appropriate period is 2.2 years.

22. I calculate the amount of interest by applying the following formula:

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

Thus:

•	K25,000.00 x 0.08 x 2.2 = K4,400.00.

COSTS

23. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

24. I direct entry of judgment in the following terms:

(1)	damages, payable by the defendants to the plaintiff, of K25,000.00;

(2)	interest payable by the defendants to the plaintiff, of K4,400.00;

(3)	being a total judgment lump sum of K29,400.00 to be paid within 30 days after the date of entry of this judgment;

(4)	costs of the proceedings shall be paid by the defendants to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

_____________________________

Paul Paraka Lawyers: Lawyers for the Plaintiff
Jaminan Lawyers: Lawyers for the Defendants