N5360

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1082 OF 2010

HELEN JIMMY
Plaintiff

V

PAUL ROOKES
Defendant

Madang: Cannings J
2013: 21 June, 6, 27, 30 September

DAMAGES – negligence – assessment of damages after trial on liability – motor vehicle accident – damages claimed for vehicle repairs, special damages, business losses and pain and suffering.

The plaintiff at an earlier trial established a cause of action in negligence against the defendant arising from a collision between a vehicle owned by the plaintiff and a vehicle driven by the defendant; the judgment in the plaintiff's favour being subject to a finding of 25% contributory negligence. At a trial on assessment of damages the plaintiff claimed four heads of damage: (1) cost of repairs, K45,019.00; (2) special damages, K5,050.00; (3) loss of income, K57,442.00; (4) pain and suffering, K10,000.00; a gross claim of K117,511.00; discounted by 25%, the net claim being K88,133.25.

Held:

(1)	The gross amounts assessed were cost of repairs, K15,677.00; special damages, 0; loss of income, K9,000.00; pain and suffering, 0; a gross award of K24,677.00; discounted by 25%, the net award being K18,507.75.

(2)	In addition, interest was awarded at the rate of 8% per annum on the net amount of damages for the period between the date on which the cause of action accrued to the date of judgment, a period of 8.71 years, the amount of interest being K12,896.20, being a total judgment sum of K31,403.95.

Cases cited

The following cases are cited in the judgment:

Abel Kopen v The State [1988-89] PNGLR 655
Daniel Jifok v Kambang Holdings Ltd (2008) N3475
Daniel Occungar v Luke Kiliso (2010) N4102
Desmond Guasilu v Enga Provincial Government (2012) N4774
Graham Mappa v ELCOM (1992) N1093
Helen Jimmy v Paul Rookes (2012) N4705
Jonathan Mangope Paraia v The State (1995) N1343
Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951
Misac Pokonoming v Jeffery Simiri (2007) N4978
PNGBC v Jeff Tole (2002) SC694

TRIAL

This was a trial on assessment of damages for negligence.

Counsel

D F Wa'au, for the plaintiff
Y Wadau, for the defendant

30th September, 2013 

1. CANNINGS J: This is an assessment of damages for negligence. The plaintiff Helen Jimmy succeeded at an earlier trial in establishing liability against the defendant Paul Rookes, arising from a collision between a Toyota Hiace bus owned by the plaintiff and a Toyota Landcruiser utility driven by the defendant; the judgment in the plaintiff's favour being subject to a finding of 25% contributory negligence against the defendant. The collision occurred at 10.30 pm on 13 January 2005 on Modilon Road, Redscar, Madang (Helen Jimmy v Paul Rookes (2012) N4705).

2. The plaintiff claims four heads of damage: (1) cost of repairs, K45,019.00; (2) special damages, K5,050.00; (3) loss of income, K57,442.00; (4) pain and suffering, K10,000.00; a gross claim of K117,511.00; discounted by 25%, the net claim being K88,133.25.

1	REPAIRS

3. The plaintiff has adduced evidence of quotes from three motor vehicle repairers, the amounts being K60,000.00, K10,835.00 and K15,677.00. The last one is by Ela Motors Madang, an authorised dealer in Toyota motor vehicles. That presents as the most reliable quote. Mr Wadau agreed with that proposition but argued that included in the quote was the cost of some repairs to parts of the vehicle that were not damaged in the collision. I find that there is insufficient evidence to support that proposition, so I will award the full amount of the Ela Motors quote: K15,677.00.

2	SPECIAL DAMAGES

4. The plaintiff seeks K5,050.00 which, Mr Wa'au submits, represents K5,000.00 for legal fees and a K50.00 court filing fee. This claim is misconceived. Special damages are intended to compensate the innocent party for loss or damage incurred that is not presumed by the law to have been incurred. It is a special sort of damage that must be expressly pleaded and proved (PNGBC v Jeff Tole (2002) SC694, Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951). The special damages claimed here have neither been pleaded nor proven. Besides that, the so-called damage that is claimed to have been incurred is actually a claim for legal costs, which is premature. The question of costs is addressed later. Nothing is awarded for special damages.

3	BUSINESS LOSSES

5. If a defendant causes damage to a plaintiff's profit-earning asset, the plaintiff is entitled to damages to compensate the plaintiff for profits lost during the period that is reasonable to repair the asset (Abel Kopen v The State [1988-89] PNGLR 655). Ideally the plaintiff should provide an audited set of accounts to verify his claim. However, if that evidence is not forthcoming, it does not follow, necessarily, that the plaintiff will be awarded nothing. The court will do the best it can on the evidence that is available (Graham Mappa v ELCOM (1992) N1093, Jonathan Mangope Paraia v The State (1995) N1343, Misac Pokonoming v Jeffery Simiri (2007) N4978, Desmond Guasilu v Enga Provincial Government (2012) N4774).

6. The plaintiff claims that since the time of the accident, she has not used her vehicle as a PMV. She claims that the vehicle was earning a gross income of K350.00 per day, which yielded a net income of K57,442.00 per annum. She claims one year lost income: K57,442.00.

7. There are two problems with this claim. First, there is no set of accounts, audited or unaudited, to verify the figures. Secondly, the period of one year to repair the vehicle is excessive. Any prudent PMV operator will ensure that their vehicle is covered by comprehensive motor vehicle insurance, which will significantly reduce the risk of it being off the road for a long period if it is involved in an accident. I will assess lost profits at a nominal figure of K3,000.00 per month. As for a reasonable period to effect repairs or organise a replacement vehicle I have looked at what Woods J allowed in the Kopen and Mappa cases (three weeks and 13 weeks respectively) and what I have allowed in similar cases, Daniel Jifok v Kambang Holdings Ltd (2008) N3475, Daniel Occungar v Luke Kiliso (2010) N4102 and Desmond Guasilu v Enga Provincial Government (2012) N4774 (three months in each), and compared the facts of this case with the facts in those cases. I will allow a period of three months. The amount of business losses is K3,000.00 per month x 3 months = K9,000.00.

4	PAIN AND SUFFERING

8. This is a nebulous claim, unsupported by particulars or any credible evidence. Nothing is awarded.

SUMMARY OF DAMAGES ASSESSED

Cost of repairs: K15,677.00
Special damages: 0
Loss of income: K9,000.00
Pain and suffering: 0
Gross = K24,677.00.

The gross figure must now be discounted by 25% (K6,169.25) on account of contributory negligence. Net total damages is K24,677.00 minus K6,169.25 = K18,507.75.

INTEREST

9. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 13 January 2005, to the date of this judgment, a period of 8.71 years, 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 K18,507.75 x 0.08 x 8.71 = K12,896.20.

COSTS

10. 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. In this case there is no clear winner. The plaintiff has on the one hand succeeded in obtaining an award of damages but on the other hand has succeeded in convincing the court that only 21% (K18,507.75 out of K88,133.25) of her claim had merit; 79% of the claim was without merit. The defendant has succeeded in showing that the bulk of the claim was misconceived. It is appropriate that the parties bear their own costs.

ORDER

(1)	The defendant shall pay to the plaintiff damages of K18,507.75 plus interest of K12,896.20, being a total judgment sum of K31,403.95.

(2)	The parties bear their own costs.

(3)	Time for entry of the judgment is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly
_______________________________________________________

Meten Lawyers: Lawyers for the Plaintiff
Young Wadau Lawyers: Lawyers for the Defendant