N4868

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1367 OF 2005

VEGI NAMAZO
Plaintiff

v

SINTONS TRADING LIMITED
First Defendant

AND

SINGO TANOFA
Second Defendant

Goroka: Ipang AJ
2012: 05, 21, 26 September,
19 October

CIVIL LAW – Claim for damages for loss of vehicle – General damages for frustrations and inconveniences – Truck on hire ran off the road, sustained damages and assessed to be written off.

Cases Cited

Kopen –v- State [1988- 89] PNGLR 659
Kerekal Farming & Trading Pty Ltd trading as Uke Transport Pty Ltd –v- Queensland Insurance (PNG) Limited [1995] PNGLR 401
Komaip Trading –v- George Waugulo & The State [1995] PNGLR 165

Counsel

Mr. D.A.Umba, for the Plaintiff
No Appearance for the Defendants 

JUDGMENT

19 October, 2012

1. IPANG AJ: The Plaintiff filed his Writ of Summons endorsed with a Statement of Claim on the 15th of August, 2005 claiming for the refund of K4000.00, damages for the loss of vehicle, loss of income, general damages for frustrations and inconveniencies suffered, interests and costs.
 
2.	From the outset, I have noted that the Plaintiff had served a Sealed Copy of Appointment of Hearing on the Defendants. Despite this, the Defendants nor their lawyers have appeared. Mr. Umba of Counsel for the Plaintiff applies to proceed ex parte and upon being satisfied that sufficient notice has been caused to the Defendants, I grant Plaintiff's application and the matter proceeded ex parte.

3.	Just a bit of a background to this case. In the Statement of claim, the Plaintiff claimed that he is the owner of the truck, a Mazda T35 Truck bearing registration No. BBK 322. He claimed that the Second Defendant in early February, 2005 without his authority removed the said truck from Tiuka village and used it to go to Lae to pick up store goods for the First Defendant. On the way to Lae at Young Creek the truck ran off the road and sustained damages to an extent that it was written off. The Plaintiff claimed that the person who drove the truck was the driver of the Defendants namely Aksi Hiuno.

4.	On the 31st of March, 2006, the Defendants through Stevens Lawyers filed a Defence to the Plaintiff's claim denying the claims raised by the Plaintiff in the Statement of Claim. In the same documents, the Defendants filed a counter claim against the Plaintiff. In the Counter claim, the Defendants claimed that the Plaintiff's agent or driver drove the truck and was negligent in his driving causing the vehicle to run off the road and was damaged. The Defendants claim against the Plaintiff is contained in paragraphs 5, 6 and 7 of the Counter Claim. 

5.	On the 6th of April, 2006, the Plaintiff filed a Defence to the Counter Claim pleading that the truck was driven by the Defendants driver Aksi Hiuno. The Plaintiff denied the rest of the claim in the Counter –claim and pleaded in paragraph 4 that he sold the engine of his Truck involved in the accident to the Second Defendant for K4000.00 and paid that K4000.00 as compensation to the relatives of two (2) people who were killed in this motor vehicle accident.

6.	The Plaintiff, Vegi Namazo gave sworn oral evidence. He was short and brief. He said on that day, he left the truck at Tiuka village and went to Tebega village. He left the vehicle key with George Hatefa. He said he later learnt of the accident involving his truck and went to Young Creek. The Plaintiff said that his truck was damaged beyond mechanical repairs and that the Defendants mechanic removed the engine and sold the engine to the Second Defendant for K4000.00. He said he used the said K4000.00 to pay compensation for the two (2) who were killed during the accident. 

7.	The next witness is George Hatefa. He also gave sworn oral evidence. His evidence was short and brief. He said he was at Tiuka village when the Second Defendant and his driver came and the driver asked to use the truck. This witness said because the owner of the truck was not present, he was reluctant to give the key to the second Defendant. He said the Second Defendant insisted saying he (Second Defendant) will sort it out later with the Plaintiff and upon that insistence from the Second Defendants; the Plaintiff's crew got the key from him and gave it to the Second Defendant.

Agreed and Disputed Facts

8.	From the Agreed and Disputed facts filed on the 31st July, 2007 the following were the agreed facts:

1.	The First Defendant is a retailing business entity based in Kainantu and the Second Defendant is the Manager of the First Defendant.

2.	On the 11th of February, 2005 the Second Defendant hired the Plaintiff's truck to travel to Lae to pick up store goods for the First Defendant.

3.	Whilst on its way to Lae, the Plaintiff's truck got involved in an accident at young creek.

4.	The truck's engine was removed by the Second Defendant's mechanics and sold by the Plaintiff to the Second Defendant who paid K4000.00.

9.	The following were the disputed facts;

1.	The Plaintiff is the owner of a Mazda T3500 truck Registration No. BBK 322.

2.	The Plaintiff gave his approval for the Second Defendant to hire his truck to travel to Lae to load goods for the First Defendant through his agent. 

3.	The person who drove the truck to Lae was the Plaintiff's driver or agent.

4.	The vehicle was released to travel to Lae with approval of the Plaintiff's agent Naen Sananke.

5.	As a result of the accident, the truck sustained serious damages rendering it beyond economical repair or written- off 

6.	Two (2) men were killed when the vehicle got involved in an accident at Young Creek for which the Plaintiff paid K4, 500.00.

7.	The Defendants carried out repairs to the truck's engine and removed the truck to the value of K4, 500.00. 

10.	 In Logan –v- The State [1995] PGNC 32; N1369 (15 September, 1995) Injia, J (as he then was) adopted the words of Lord Coddard CJ in Bonham –v- Hyden Park Hotel Ltd [1948] 64 TLR 177 at p.178. The words quite usefully captured the obligation bestowed on a plaintiff in a damages suit. I find useful to adopt here:

"Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damage; it is not enough to write down particulars and so to speak, throw them at the head of the Court, saying: this is what I have lost, i ask you to give me these damages.' They have to prove it."

11.	The following issues are for determinations:

1.	Whether the Plaintiff gave permission for the Defendants to hire his truck to Lae.

2.	Whether Plaintiff's agent Naen Sanake had approval from Plaintiff to allow Defendants hire the truck.

3.	Who was the driver of the truck when it got involved in the accident?

4.	Was the accident caused through the negligent driving of the driver or was it caused due to the driver being drunk.

12.	As indicated from the outset, the Defendants did not appear to defend the claim raised by the Plaintiff and prosecute their cross claim, I will analyse the evidence put forward by the Plaintiff. 

13.	The Plaintiff's evidence was that his agent did not drive the truck but the Defendants' driver Aksi Hieno did. From the evidence before the Court I find that the Plaintiffs agent Nageu Sanake did not have the express authority from the Plaintiff to release the truck to the Second Defendant. The truck was damaged beyond economical repair as there is evidence that the engine was removed and sold to the Second Defendant for K4000.00. There is evidence that the K4000.00 was used to pay compensation for two (2) men who were killed in the accident. Without the Traffic Accident Report, the only evidence that the truck ran off the road and over turned implies some negligence on the part of the driver Akis Hiuno to cause the truck to run off the road. In view of these findings and on the balance of probabilities I find the Defendants liable. 

14.	It is with no doubt that the Plaintiff is the owner of the truck Mazda T35 Registration No. BBK 322. The said truck was driven out on hire without his permission. The said truck was involved in an accident and was written off. In Kopen –v- State [1989] PGNC 50; [1988-89] PNGLR 659, the Court stated: 

"The basic rule in damages for negligence is that the measure of damages in the case of damage to a chattel is the cost of repairs but if it is unreasonable from a business point of view to repair the vehicle or if the vehicle is damaged beyond repair, then the basic measure is the cost of replacement in an available market. See Halsburys Laws of England (4th ed) vol.34, para 88 at 72 and cases noted therein. A further ruling in connection with the loss of a profit-earning chattel is that, where ad 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 repair: see Halsbury, par 89 at 73."

15.	The Plaintiffs evidence is that he purchased the truck in Port Moresby for the sum of K25, 000.00 in 2004 and shipped it to Lae. The Plaintiff says the truck was in operation for some 12 months before the accident. Allowing for wear and tear and depreciation in value for these 12 months, the Plaintiff submitted that the value of the truck would have decreased by 20%. Plaintiff submitted that the Court should award a sum of K20, 000.00 for the loss of the truck.

16.	I will not make any orders for the damages for loss of income purely on the reason that there is no evidence to prove that head of damages. 

17.	I have considered necessary to award K2,500.00 as damages for frustrations and inconvenience directly related to the loss of his truck.

18.	In terms of calculating interests, I could not add K4, 000.00 as it is neither a debt nor a damages. So my calculation of the interest is as follows:

•	K22500.00 x 0.08 x 7 years = K12,000.00 

19.	I refuse to order refund of K4, 000.00 as it was the payment for truck engine. Second Defendant paid for the engine of the truck. Thereafter, how the Plaintiff used the money has no consent or direction from the Second Defendant so the First Defendant should not be tied down to this.

20.	I award costs against the Defendants. Costs to be agreed if not to be taxed.

21.	I award total judgment in the sum of K34, 500.00. 
__________________________________________

D.A.Umba Lawyers: Lawyers for the Plaintiff 
Lawyers for the Defendants: Nil Appearances