N8377

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 227 OF 2017

BETWEEN
GOLDEN VALLEY TRANSPORT
Plaintiff

AND:

PETER PIPILI 
First Defendant 

DEKENAI CONSTRUCTION
Second Defendant

Lae: 	Numapo J
2019:	10th April

CIVIL PRACTICE AND PROCEDURE – Assessment of damages (Order 10 Rule 17) – Judgment on Liability – Pecuniary damages and general damages – Plaintiff bears the onus to prove loss – Claim on losses must be corroborated – Plaintiff has a duty to mitigate loss – Plaintiff entitled to damages.

Case Cited:

Waranunbo v Hyper Construction Ltd (2012) N4882 
Jifok v Kambang Holdings Ltd t/a Lutheran Shipping (2008) N3475 
Andrew Kewa v Johnny Lus & Securimax Security Ltd (2007) PGNC 3 
Rodao Holdings Ltd v Sogeram Development Corporation (2006) N5485
William Mel v Coleman Pakalia and Others (2005) SC790
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Coecon Ltd v National Fisheries Authority (2002) N2182
Jonathan Paraia v The State 91995) N1343
PNG Ports Corporation Ltd v Islands Salvage and Towage Ltd (2009) N3780. 
Albert Baine v The State (1995)
Kopung Brothers Business Group v Sakawar Kasieng [1975] PNGLR 331
Peter Wanis v Fred Sheekiot & The State 91995) N1350

Counsel:

Mr S Kesno, for the Plaintiff
Mr N Pilamb, for the Second Defendant 

DECISION

23rd June, 2020

1.      NUMAPO J: The Plaintiff commenced this action on assessment of damages pursuant to Order 10 Rule 17 of the National Court Rules (NCR) after judgment on liability was entered against the Defendants jointly and severally on the 21st February 2018 with damages to be assessed later. The claim arose from a motor vehicle accident involving the Plaintiff’s and the Defendant’s vehicles resulting in a complete write-off of the Plaintiff’s vehicle, hence this proceeding.  The Plaintiff claims the following:

(i)	 Damages on Pre-accident value of K33, 000 for the vehicle
(ii)	 General damages for loss and suffering
(iii)	Interests
(iv)	Costs

A.	BACKGROUND

2.      The Plaintiff is the owner of the Nissan Urvan bus registration no. LAX 970 (Nissan bus). The Second Defendant’s vehicle is a Nissan Patrol utility vehicle registration no. DBU. 654 (Nissan Patrol). 

3.     The First Defendant is an employee of the Second Defendant and was driving the Nissan Patrol on the morning of the 07th June 2013 in a south westerly direction along the Mangola Street towards the intersection of the Montoro Street in Lae when the accident happened. The Nissan Patrol was driven by the First Defendant when it collided with the Nissan Urvan bus driven by Chris Pokana, an employee of the Plaintiff. According to the undisputed facts, the Nissan Patrol rammed into the Nissan Urvan bus on its right hand mid to rear side causing extensive damage on impact to the Plaintiff’s vehicle. Several employees of the Plaintiff in the bus also received injuries to their bodies. 

4.     The estimated costs of repairs to the Plaintiff’s vehicle was K33, 165.99 based on a quotation from Boroko Motors. The ‘pre-accident’ value of the vehicle is K33, 000.00. According to Boroko Motors the damage is beyond repair and is uneconomical. The Nissan bus is no longer in operation. In the meantime, the Plaintiff used its other vehicle to transport his employees and also doing other runs. On the 15th August 2013 some two months later the Plaintiff purchased a new vehicle an Isuzu Cargo truck to replace the damaged Nissan bus at the cost of K100, 000.00. 

5.    The First Defendant was arrested and charged with a criminal offence for dangerous driving causing bodily injuries and was found guilty and convicted by the National Court on the 25th September 2015 and sentenced to two (2) years imprisonment which was wholly suspended and the accused placed on a good behaviour bond.

6.     These were the undisputed facts upon which the court found the defendants liable and accordingly, entered a judgment in favour of the plaintiff. 

7.     The Plaintiff wrote to the Second Defendant requesting that the matter be settled out of court after the conviction of the First Defendant and that the Second Defendant pays for the cost of damages caused to the Nissan Urvan bus. The Second Defendant did not respond to the request hence this action.

B.	ISSUE

8.     The issue(s) are:

(a)	 Has the Plaintiff proven its losses?

(b)	 Is the Plaintiff entitled to K33, 000.00 the pre-accident value of the Nissan bus?

(c)	 Is the Plaintiff entitled to general damages for loss and suffering?

C.	ASSESSMENT OF DAMAGE

9.     The general principles in assessment of damages is that the claimant is entitled to full compensation of his or her losses once liability is established. The precise quantum to be paid to the plaintiff by the defendant is to be assessed in the trial on assessment on damages. In tort, the purpose of damages is to put the claimant in the position that he/she would have been in had the tort not been committed. See: Waranunbo v Hyper Construction Ltd (2012) N4882; Jifok v Kambang Holdings Ltd t/a Lutheran Shipping (2008) N3475; and Rodao Holdings Ltd v Sogeram Development Corporation (2006) N5485.

10.     A number of case laws have made it clear that once liability is established and on assessment of damages the court is satisfied that the Plaintiff has suffered the losses, it should award the damages. See: Andrew Kewa v Johnny Lus & Securimax Security Ltd (2007) PGNC 3.

11.     The Supreme Court in William Mel v Coleman Pakalia and Others (2005) SC790 in endorsing the earlier decisions of Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694 and a National Court decision in Coecon Ltd v National Fisheries Authority (2002) N2182, held that, the role of a trial judge in assessing damage is:

(a)	To make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; and

(b)	If the facts and cause of action are reasonably clear, liability should be regarded as proven, i.e. the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;

(c)	Only if the facts of the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability;

(d)	The plaintiff has the burden of producing admissible and credible evidence of the alleged damages; and

(e)	Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability. 

D.	PRESENT PROCEEDINGS

12.     The matter came before me on the 19th March 2019 and Counsels informed the court that they will be relying on the affidavits they filed in the hearing on damages. I then directed that the hearing proceeds by way of affidavits and the parties are to file their respective submissions by the 10th April 2019 for trial on assessment of damages. At the trial, two Plaintiff’s witnesses were cross examined on their affidavits filed in court. The affidavit of Chris Pokana, the driver of the Nissan Urvan bus, sworn and filed on the 22nd November 2018 - (Exhibit “A”) and the affidavit of Tina Poya Kerowa, the Plaintiff’s Financial Controller, sworn and filed also on the same date – (Exhibit “B”). Both witnesses were cross-examined on their affidavits. The witnesses’ evidence remains intact. 
 
13.     Defence on the other hand, has not filed any affidavits nor did it adduce any evidence to dispute the Plaintiff’s claim. The First Defendant did not appear nor was he represented by Counsel. The only evidence before the Court on the trial on assessment of damages is that of the Plaintiff. The net effect therefore, is that the Plaintiff’s claim on damages has not been challenged. Defence however, raised two grounds challenging the claim premised on tort law. Firstly, Counsel argued that the Plaintiff has not sufficiently pleaded vicarious liability therefore, the Second Defendant is not liable for the conduct and/or actions of the First Defendant. Secondly, Counsel submitted that the issue of liability has not been properly settled and needs to be revisited. With respect, I find the Counsel’s argument without any basis for the reason that the issue on liability has already been determined and judgment has been entered against the Defendants jointly and severally on the 21st February 2018. The present proceedings relates to trial on assessment of damages after liability has been established. Now is not the time to raise the issue of liability as we have already gone past that stage. The horse has bolted.

14.    The second issue the Defendant raised relates to the cost of the damage on the vehicle which I will address in due course.

15.     I now turn to the issue relating to assessment of damages. 

E.	LOSSES MUST BE PROVEN

16.     The first issue for the court to determine is; has the Plaintiff suffered any losses and if so, has the Plaintiff proven its losses? 

17.     The onus is on the Plaintiff to prove his loses upon the balance of probabilities. He must show through evidence the losses he suffered. Mere speculation or assumption on losses suffered or likely to be suffered is not good enough. A good number of case laws have established these principles of law which requires sufficient proof on losses, the burden of which is on the claimant. See for example: Jonathan Paraia v The State 91995) N1343; PNG Ports Corporation Ltd v Islands Salvage and Towage Ltd (2009) N3780. 

18.      Claim for losses must also be corroborated. No claim will succeed if the evidence on the loss is not corroborated. Corroboration is usually required on claims on losses. See: Albert Baine v The State (1995); Kopung Brothers Business Group v Sakawar Kasieng [1975] PNGLR 331. The same principles of proof and corroboration apply even when the Defendant fails to present any evidence disputing the claim. See: Peter Wanis v Fred Sheekiot & The State 91995) N1350.

19.     The facts that were established from the Plaintiff’s uncontested evidence is as follows:

(i)	   The Nissan Urvan bus registration number LAX 970 owned by the Plaintiff was damaged beyond repair;

(ii)	   The costs of repairs exceeded its pre-accident value of K33,000.00; and

(iii)	   To mitigate its loss the Plaintiff purchased a new motor vehicle, an Isuzu Cargo Truck at the cost of K100, 000.00 financed through a bank loan with an annual interest of 8.2%. 

20.     With respect to the first issue, I am satisfied that the Plaintiff’s evidence has been sufficiently corroborated and stands unchallenged relating to its losses and therefore, the Plaintiff is entitled to damages. 

21.     The second issue for me to determine is the quantum; is the Plaintiff entitled to K33, 000.00 as the cost of the ‘pre-accident’ value of the Nissan Urvan bus? 

22.     According to the Plaintiff, the Nissan Urvan bus was purchased at the cost of K62, 200.00 in 2009 with its pre-accident value at K33, 000.00. Following the accident, an inspection of the damage was carried out by Boroko Motors and the repair quote was estimated to be K33, 165.99. The quote exceeded the pre-accident value and Boroko Motors considered it uneconomical to repair the vehicle. Plaintiff therefore, claimed the pre-accident value of the vehicle which is less than the cost of repairs under its vehicle insurance cover.

23.     The quantum is normally based on the actual loss suffered. In this case, the loss suffered by the Plaintiff is K62, 000.00 being the actual cost of the vehicle but given that the vehicle was purchased some four years ago (2009 – 2013) the value has depreciated and therefore, lesser than the original cost. Unfortunately, the Plaintiff was not able to show in monetary figure the actual depreciation value of the vehicle at the time of the accident. Nonetheless, I am inclined to accept K33, 000.00 as the depreciated value of the Nissan Urvan bus at the time of the accident. 

24.     I turn to the second ground raised by the Defence regarding the cost of damages. Mr Pilamb for Defendant challenged the claim on losses and argued that the Plaintiff did not provide any evidence to substantiate the claim of K33, 000.00 as the actual cost of the damage caused to its vehicle. Defence argued that the figure submitted by the Plaintiff is only a quote estimate from Boroko Motors and asked the Court not to accept it. However, Defence did not provide any evidence showing that the repair cost would be far less than what the Plaintiff is claiming. The only evidence before the Court is that of the Plaintiff on the cost of damage. The Court is left with no option but to accept the quote provided by Boroko Motors as the final cost for the repairs. 

25.     Based on that, I am satisfied that the Plaintiff has quantified his loss and is therefore, entitled to K33, 000.00 being the pre-accident value of the damaged Nissan Urvan bus.

26.     With respect to the third issue relating to general damages for loss and suffering. The Plaintiff claims K50, 000.00 in general damages.  It is not unusual for a Plaintiff to seek general damages in conjunction with the pecuniary damages. The court is required to assess the general damages for loss and suffering suffered by the Plaintiff which may include but not limited to; emotional distress, inconveniences, frustrations and loss of business etc. The award in general damages is usually assessed by comparing previous court awards in cases with similar facts. 

27.     Counsel for the Plaintiff Mr Kesno submitted that the court follow an earlier decision in Rodao Holdings Ltd v Sogeram Development Corporation Ltd (supra) with similar circumstances and award the Plaintiff a sum of K50,000.00 in general damages for distress, inconvenience and frustrations. However, it is often difficult to put monetary value on things like emotional sufferings, frustrations and inconveniences etc. as they are difficult to measure. 

28.     In terms of losses and sufferings, it is trite law that a person who suffers personal injury through no fault of his or her own, has an obligation to take necessary steps to avoid further losses and minimize it. In otherwords, the Plaintiff has a duty to mitigate his loss and must therefore, take all appropriate action(s) to lessen the impact of the loss and suffering. So did the Plaintiff do that in this present case? 

29.     According to the uncontested evidence before the Court, the Plaintiff mitigated its losses firstly, by using its other company vehicles to transport its employees and do other errands for the company and secondly, Plaintiff obtained a bank loan and purchased a new Isuzu Truck to replace the damaged Nissan Urvan bus. There is no evidence suggesting that the normal operation of the business has been seriously affected or come to a standstill as a result of the loss of the Nissan Urvan bus. 

30.     I am therefore, satisfied on the balance of probabilities that the Plaintiff has taken steps to mitigate its loss and is therefore, entitled to general damages. But as to how much the Plaintiff is entitled to will depend on a number of factors such as for example, how long was the inconvenience caused and its effect on the business in general. In this case, the length of time was two (2) months and one (1) week in total in which the Plaintiff had to make alternative transport arrangements to carry on business. The length of time, generally speaking, is shorter than in other similar cases that Counsel for the Plaintiff referred to in his address. Given the shorter period of time, I would think that the Plaintiff’s business operation has not been seriously affected hence, the loss would be fairly minimal. Whilst I am required to follow the precedent case law on similar cases, I must also remind myself that each case is different and must be dealt with on its own merits.  

31.     Having considered all the facts and circumstances of the case, I am of the view that a sum of K35, 000.00 in general damages for loss and suffering is fair and reasonable in the circumstances.

F.	ORDER

32.     I make the following Orders:

(i)	Plaintiff is entitled to pecuniary damages in the sum of K33, 000.00 being for the pre-accident value of the Nissan Urvan bus.

(ii)	 Plaintiff is entitled to general damages in the sum of K35, 000.00 for loss and suffering.

(iii)	8% interest per annum (from the date of the filing of Writ of Summons until payment in full) and costs pursuant to the Judicial Proceedings (Interest on Debts & Damages) Act 2015.

(iv)	Costs of these proceedings to be paid by the Defendants.

Orders Accordingly

Kesno Lawyers             :	          Lawyers for the Plaintiff
Mel & Henry Lawyers  :	          Lawyers for the Second Defendant