N4887

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 257 OF 2009

JUNIOR FABIAN NINGAL BY HIS NEXT FRIEND
MARIE LOUISE TERWIEL NINGAL
Plaintiff

V

DOMI LUCAS
First Defendant

AND

WANPIS DAVID TEMEN
Second Defendant

Goroka: Ipang AJ
2012: 12 & 29 October
14 November

DAMAGES – Estimating loss of profit or business income requires replaying history – what actually happened – It involves reconstructing pre, during and post – interruption history – Getting business records – Balance sheets, income statements, cash flow statements, cost histories and breakdowns – Identifying period of disruption – closed, open (disruption or its effects are ongoing) or infinite (company went out of business) – what would have happened – Absent the disruption.

DAMAGES – Defendants without permission, authority and consent took plaintiff's truck and had possession of it for 77 days – Damages to trespass and loss of business claimed.

Cases Cited

Michael Sasaka v Thomas Dal Mini & Ors, WS No. 1370 of 2007 (30 October, 2012) unreported 
Graham Mappa v PNG Electricity Commission
Abel Kopen v State [1988-89] PNGLR 659
Komaip Trading v George Waugulo & The State [1995] PNGLR 165
William Pattits for and On behalf of Sasaova Business Group v The State N3088 (26 September, 2006) 
Tusia Komasa v Edger Jossy & Or WS No. 948 of 2006 (12 October, 2012) Unreported
Coecon Ltd v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February, 2002)
Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694
National Provident Fund Board of Trustees v Jimmy Maladina & Ors (2003) N2486
Motor Vehicles Insurance (PNG) Trust Ltd v James Pupune [1993] PNGLR 370
Motor Vehicles Insurance (PNG) Trust Ltd v John Etape [1994] PNGLR 596

Counsel

Mr. L. Terwiel Ningal (Next Friend of Fabian Ningal), in Person 
No Appearance of Defendants

JUDGMENT

14 November, 2012

1.	IPANG AJ: This is the trial on assessment of damages for trespass and damage caused to the plaintiff's truck a Hyundai HD 65 Registration No. P431 W. Default judgment was ordered on the 10 June, 2011 and entered on the 24 June, 2011. 

BRIEF FACTS

2.	On or between 16 August, 2008 and 19 December, 2008 a period of 77 days, the Defendants unlawfully and without consent, authority and approval either expressed or implied by neither the plaintiff nor the New Friend had possession of the truck.

3.	Defendants took the truck away from the Plaintiff's approved operational routes in and around Eastern Highlands Province to Chimbu Province. Thereafter, the Plaintiff claimed Defendants used the truck. Plaintiff said the truck was in the Defendant's possession for 77 days and was returned to the Plaintiff on the 20 December, 2008.

4.	On the 20 December, 2008 after the truck was returned to the Plaintiff, it was discovered the vehicle suffered several damage to it's parts; the two (2) front springs assembly; shaft centre bearings, universal joint, shock absorbers and stainless welding rods.

CHRONOLOGICAL ORDER OF EVENTS

5.	On the 11 March, 2009, the plaintiff filed a Writ of Summons endorsed with a Statement of Claim. The Writ of Summons was on the 14 April, 2009 served on the First Defendant and on the 19 July, 2010 the Second Defendant was served. There was no Notice of Intention to Defend and Defence filed. On the 18 March, 2011 the plaintiff filed a Notice of motion with supporting Affidavit of Marie Terwiel Ningal sworn and filed on the 18 March, 2011. On the 10 June, 2011 Default Judgment was ordered in favour of the plaintiff.

ASSESSMENT OF DAMAGES

6.	In the Writ of Summons filed, the Plaintiff claimed for the following: 

(i)	Damages for Trespass

(ii)	Special Damages

(a)	Loss of business income for 77 days - K11, 550.00

(b)	Costs of damage done to the vehicle within 77 days - K 4, 888.40

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TOTAL - K15, 888.40
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(iii)	The 8% interests pursuant to Statute

(iv)	Costs of this proceedings

7.	In respect of assessment of damages, plaintiff relied on the Affidavit of Marie Terwiel Ningal sworn and filed on the 15 July, 2011 and the submission filed on the 05 October, 2012. I will refer substantially to these two (2) documents for the purpose of assessment. As it can be appreciated, Defendants have taken no interest in this proceeding and have not filed their Notice of Intention to Defend, their defence even when there was evidence of due service.

8.	In the present case liability has been established by default on the 10 June, 2011 but the plaintiff is still under obligation to prove his damages on the balance of probabilities. If the plaintiff overcomes this hurdle, he is entitled to be awarded his damages. See Coecon Ltd v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February, 2002), Kinsim Business Group Inc. v Joseph Hompwafi & State N1634 (18 September, 1997).

GENERAL DAMAGES FOR TRESSPASS 

9.	The first head of damages claimed was for general damages for trespass. In the Affidavit of Marie Ningal filed on the 15 July, 2011 she deposed that she would after trial on assessment of damages, filed a separate submission. Refer to paragraph 18 of her Affidavit. Marie Ningal a lay person, a non lawyer does not really understand and appreciate the court process that it is of no use filing a separate submission on general damages for tort of trespass after completion on trial on assessment of damages.

10.	On the 5 October, 2012 that is after one (1) year, 3 months Marie. L. Ningal filed her submission she said she has decided not to pursue general damages for tort of trespass. She claimed Defendants are villagers and do not have a reliable source of income. Based on this, the general damages for tort of trespass will not be assessed.

11.	The claim for general damages for tort of trespass is the main or the principal claim in this proceeding and other damages claimed are consequential in nature. It is more like you chopping off the main trunk of a tree and all the branches will fall down with the trunk. I cannot imagine branches of a tree standing without the tree trunk. But you chop a branch of a tree, the tree itself will still remain standing. So this logic basically applies here. Other heads of damages like special damages for loss of business, out of pocket expenses are claimed as a result of tort of trespass committed. So, by withdrawing the principal head of damages claimed (the main cause of action) would also have a flow on effect on all the consequential damages. However, as I have alluded to earlier of the plaintiff been a non lawyer I will apply fairness and equity here by going further to assess the consequential damages of special damages for loss of income and out of pocket expenses.

SPECIAL DAMAGES FOR LOSS OF PROFITS OR BUSINESS INCOME

12.	In Michael Sasaka v Thomas Dal Mini & Or WS. No. 1370 of 2007 (30 October, 2012) unreported, I stated the following as the general yardstick for measuring or calculating loss of profits. I stated that estimating loss of profit would require replaying the history of what actually happened. To do this will require reconstructing the Pre, During and Post-Interruption History coupled with getting the business records, Balance Sheets, Income Statements, Cash Flow Statements, Costs histories and Breakdowns, Identifying the period of disruption that different stages – closed, Open (disrupting or its effect are ongoing) or, infinite (company went out of business).

13.	In paragraph 16 (a) of the Affidavit of Marie Ningal she deposed that the PMV would have made within the 77 days which was the period of disruption the amount of K11, 550.00 at the rate of K150.00 per day. This disruption period runs from 16 August, 2008 to 19 December, 2008. The question to ask is 77 days reasonable period? See Abel Kopen v State [1988-89) PNGLR 659. Did the plaintiff take reasonable steps to repossess the truck from the Defendants thus mitigate his damages? See Abel Kopen v State (supra).

14.	Plaintiff claimed K150.00 per day for 77 days and total loss of profits at K11, 550.00. There are requirements to prove loss of profits. The requirements were established in Graham Mappa v PNG Electricity Commission [1995] PNGLR 165; Marus Mong v John Selou (2002) N2208; Kinsim Business Group Inc. v Joseph Hompwafi & Or (supra). Basically, the requirements to produce business records, Profit and Loss Statements, Tax Returns, etc.

(i)	Plaintiff has not satisfied the requirements to claim for loss of profits or business income. Plaintiff has not produced any business records, bank statements, Profit and Loss Statements, Tax Returns, etc. Even the Plaintiff has not adduced evidence to establish his claim under the exceptions provided in William Patitts For and On Behalf of Sasaova Business Group v State N3088 (26 September, 2006) and Tusia Komasa v Edger Jossy & Or. No. 948 of 2006 (12 October, 2012) Unreported.

(ii)	Because of this finding, I refuse plaintiff's claim of K11, 550.00 for special damages for loss of profits or business income.

SPECIAL DAMAGES FOR OUT OF POCKET EXPENSES

15.	Plaintiff claimed for out of pocket expenses for the costs involved in meeting damaged parts of the truck. This claim was not pleaded in the Statement of Claim. In the Affidavit of Marie. L. Ningal, she sets out particulars of out of pocket expenses especially paragraph 16 (b). Ningal attached copies of the receipts annexed as "D1-22". The claim under this head of damages is for a sum of K13, 156. 90. I am not satisfied and will not award the sum of K13, 156. 90 as claimed. The basic reason for my refusal is that plaintiff is not entitled to claim what she has not pleaded. In Papua New Guinea Banking Corporation Limited v Jeff Tole (2002) SC 694, the Supreme Court Bench comprised Amet, CJ (as he then was), Sheehan & Kandakasi, JJ stated the following;

"The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of party, no evidence and damages or relieves of matters not pleaded can be allowed."

16.	These principles were re-enforced in National Provident Fund Board of Trustees v Jimmy Maladina & Ors (2002) N2486 by Kandakasi, J where His Honour said; " the object of pleadings is to enable the parties to fully disclose in fairness the basis of their claim or a defence with particulars to avoid delay, trials by ambush, evasion and/or attrition. They also enable the opposing party to know precisely the claim, he or she is to meet and if need be, enable an out of court settlement or a payment into Court. At the same time, pleadings enable the court to know exactly what the issues between the parties are and what is required to hear and determine". Also see Motor Vehicle Insurance (PNG) Trust Ltd v James Pupune [1993] PNGLR 370; and Motor Vehicle Insurance (PNG) Trust Ltd v John Etape [1994] PNGLR 596.

CLAIM FOR COSTS OF DAMAGE

17.	Plaintiff claim for damage done to the truck when the truck was in possession of the defendants for 77 days in the following; 

(iii)	Front Spring Assembly 2 x @ K1, 500.00	K3,000.00	
(iv)	Shaft Centre Bearings	162.00	
(v)	Universal Joint	28.40	
(vi)	Shock Absorbers 4 x @ K81.00	334.00	
(vii)	Stainless Welding Rods 7 x @ K8.0	56.00	
(viii)	Labour Charge 16 days @ 8 hrs per day	768.00	
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TOTAL	K4, 338.48	
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18.	I am satisfied and award plaintiff the costs of damage in the sum of K4, 338.40.

19.	I award the following;

•	Cost of damage done to the vehicle 	-	K4,338.48
•	The 8% interest pursuant to statute
•	K4, 338. 48 	x 	K1, 318. 89 	= 	K5, 657. 37

20.	I award the total judgment in the sum of K5, 657. 37 plus costs. Costs to be agreed, if not to be taxed.

______________________________
Plaintiff In Person 
Nil Appearance for Defendants