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Sorowa v Taison [2021] PGNC 475; N9229 (10 September 2021)

N9229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No 1538 OF 2019 (CC4)

BETWEEN:
ELISON SOROWA
Plaintiff

AND:
MEL TAISON
First Defendant

AND:
TASION GROUP trading as FREEWAY MOTORS
Second Defendant

Waigani: Wurr AJ
2021: 19^th August, 10^th September

ASSESSMENT OF DAMAGES- liability established through entry of default judgment-plaintiff’s public motor vehicle collided with a company motor vehicle through negligent driving- plaintiff claims general damages, special damages, loss of business, damages for stress and depression, cost and interest- each head of damages assessed

Cases Cited:

Papua New Guinea Cases

Abel Kopen v The State [1988-89] PNGLR 659
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Graham Mappa v PNG Electricity Commission [1995] PNGLR 170
Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128
Joe Naguwean v The Independent State of Papua New Guinea [1992] PNGLR 367
Jonathan Mangope Paraia v The State (1995) N1343

Samot v Yame [2020] PGNC 63; N8256
Steven Naki v AGC (Pacific) Ltd (2006) N5015
Wabata -v- Ohue (2016) N7157
William Mel v Coleman Pakalia (2005) SC790

Overseas Cases

Livingstone v Rawyards Coal Co, (1880) App Cas 25

Counsel:

F. So, for the Plaintiff
No Appearance, for the First and Second Defendants

JUDGMENT

10^th September, 2021

1. WURR AJ: This is a decision on assessment of damages. The claim is launched in the tort of negligence by writ of summons endorsed with a statement of claim filed 05 December 2019. The plaintiff owns and operates a taxi service business in Port Moresby, National Capital District. On 01 May 2019, his taxi registration number T5463 collided with the second defendant’s company vehicle, a Toyota Hilux Double Cab registration number BFH 922. The taxi was driven by the plaintiff’s driver while the Toyota Hilux was driven by the second defendant’s driver. The plaintiff claims damages arising out of the accident. Both defendants failed to file their Notice of Intention to Defend and Defence resulting in entry of default judgement against the second defendant on 11 March 2020.
   

PRELIMINARY

2. On the date of trial, the lawyer for the second defendant, Mr Coomer, attempted to make an appearance for the second defendant and move an application seeking adjournment. He did not file a Notice of Appearance or Notice of Change of Lawyers; nor did he file an application to vacate the trial.
   
3. Mr So for the plaintiff strongly objected to the application for adjournment on the basis that it was made at the eleventh hour and there was no formal application on foot.
4. After hearing counsel, I refused leave for Mr Coomer to make an appearance. However, because Mr Coomer proceeded to move an oral application from the bar table to adjourn the trial, I heard and refused his application on the basis that there was no formal application before the court. Mr Coomer also invited the Court to allow him to rely on an affidavit which he claimed was filed the previous day, however no such affidavit was on the court file. Mr So informed the court that he was not served and objected to it being tendered and relied on. The objection was upheld.
   
5. Order 10 Rule (A)13 of the National Court Rules provides that a trial once fixed shall not be adjourned except with leave of the Court upon sufficient cause being shown.
   
6. The second defendant was aware of the existence of these court proceedings since it was filed in 2019. Liability was established against it in March 2020 by entry of default judgment. No sufficient cause has been shown for leave to be granted to adjourn the trial. Moreover, the second defendant’s argument that it was not in the interest of justice for the trial to proceed, is without merits.
   
7. The plaintiff took all reasonable steps to progress this matter to trial. The court must also take into consideration the plaintiff’s interest. Justice delayed is justice denied.
   
8. After ruling on this preliminary issue, I then made a cursory inquiry of the pleadings so as to satisfy myself that the facts and cause of action were pleaded with sufficient clarity. I am satisfied after making that inquiry, that I need not re-visit the issue of liability. (William Mel v. Coleman Pakalia & Ors, (2005) SC790, following).
   
   9. The trial on damages proceeded ex parte.
      

EVIDENCE

10. In support of the claim, the plaintiff relied on the following affidavits:
    
    1. Affidavit of Elison Sorowa filed on 16 November 2020 – Exh P1
    2. Affidavit of Elizah Koi filed on 16 November 2020 - Exh P2
    3. Affidavit of Johannes Sent filed on 16 November 2020 – Exh P3
       

RELIEF CLAIMED

11. In the statement of claim, the plaintiff claims the following relief:
    
    1. The sum of K43, 700.00 for loss of business for the months of May, June, July, August and September 2019
    2. General Damages
    3. Special Damages, including a replacement cost of the Plaintiff’s Motor Vehicle
    4. Damages for mental anguish (stress and depression)
    5. Interest at 8% per annum from the date of this Writ of Summons herein pursuant to the Judicial Proceedings (Interest on Debt and Damages) Act.
    6. Costs.
       

SUMMARY OF PLAINTIFF’S EVIDENCE

12. The plaintiff claims to be the registered owner of a sedan providing taxi service within National Capital District and Central Province. His taxi bears registration number T5463. The plaintiff registered a company in 2009 with Investment Promotion Authority (IPA) called Paradise Pee Kuri Limited under which he operates his taxi business. (see Annexures C, D, and E of Exhibit P1, copies of Certificate of Incorporation with IPA, Certificate of CTP Insurance Policy & Registration, Letter from ICCC confirming accuracy of taximeter, respectively).
    
13. The plaintiff’s vehicle was in good condition at all times. (see Annexure F of Exhibit P1- Motor Vehicle Inspection Report dated 25/10/2019).
    
14. On 01 May 2019 at around 7:00 pm, the plaintiff’s driver Elizah Koi was driving along Gavamani Road from Manu Auto-Port to Badili. At Sabama -Pari Road intersection while driving past the pedestrian crossing towards the intersection, a motor vehicle registration number BFH 922, Toyota Hilux Double Cab, white in color, owned by the second defendant was travelling from Pari Road at high speed. It failed to slow down to give way and instead made a sharp right turn towards Manu Auto-Port and collided with the plaintiff’s car head -on. (Annexure A of Exhibit P1 contains the Vehicle summary sheet confirming that the Second Defendant owns this vehicle. Annexure I of the same exhibit is the Road Accident Report)
    
15. The driver of the vehicle owned by the second defendant sped away towards Manu Auto Port but not before the plaintiff’s driver took note of the descriptions of the vehicle which caused the collision.
    
16. On 02 May 2019 at around 9am the plaintiff’s driver fronted up at the second defendant’s office at Four Mile to enquire about the vehicle that caused the accident and it was confirmed by an employee of the second defendant that the car registered as BFH 922 belonged to the second defendant. (See Exhibit P2, Affidavit of the driver Elizah Koi.
    
17. The plaintiff’s driver was advised to lodge his complaint with the first defendant. When he called the first defendant that day to lodge his complaint, he was informed by the first defendant that they were aware of the accident and advised him to attend their office the next day.
    
18. On 03 May 2019 the plaintiff’s driver went to the second defendant’s office at Four Mile and called the first defendant several times but his phone kept ringing out so he went back home. The plaintiff’s driver got a call from the first defendant that night to meet him at Boroko Traffic Registry the next day.
    
19. On 04 May 2019 at around 9am the plaintiff’s driver made his way to Boroko Traffic Registry and waited for the first defendant for four hours but he did not turn up. When the plaintiff’s driver called him, his phone kept ringing out.
    
20. That evening, the plaintiff’s driver again got a call from the first defendant to see him the next day. On 05 May 2019 the first defendant met with the plaintiff’s driver and advised him to provide a quote. He advised the plaintiff’s driver that if the quote added up close to the cost of a new car, then he would purchase a new car for the plaintiff.
    
21. That same day the plaintiff’s driver left the plaintiff’s vehicle at the second defendant’s workshop at Four Mile for them to assess the damage. A quote of K10, 000.00 was given to the plaintiff. (Annexure J of Exhibit P1).
    
22. However, quotations from other car dealers were higher than K10, 000.00 ranging from slightly over K15, 000.00 to K18, 000.00. (see Annexure K of Exhibit P1)
    
23. The next day the plaintiff’s driver met up with the first defendant in front of Sky View Club at Boroko and handed to him the plaintiff’s business loss statement. The first defendant took it but never responded. The plaintiff’s vehicle continued to sit idle.
    
24. After months of waiting and following up unsuccessfully, the plaintiff instructed Ketan lawyers to file a claim against the defendants.
    

FINDINGS OF FACT

25. The plaintiff’s evidence is uncontested and corroborated to some extent. I make the following findings of fact from the evidence adduced:
    
    1. The plaintiff is the owner of a registered taxi described as T5463.
    2. On 01 May 2019 at around 7:00 pm, the plaintiff’s driver was driving along Gavamani Road from Manu Auto-Port to Badili when he collided with the second defendant’s vehicle described as BFH 922, Toyota Hilux Double Cab, white in color. The second defendant’s driver was at fault.
    3. On 02 May 2019 at around 9am the plaintiff’s driver fronted up at the second defendant’s office at Four Mile to enquire about the vehicle that bumped into him and it was confirmed by an employee of the second defendant that the car registered as BFH 922 was owned by the second defendant. The plaintiff lodged his complaint at the second defendant’s office.
    4. Several follow ups were made to the first and second defendants but all were unsuccessful.
    5. On 06 May 2019 the plaintiff’s driver submitted his loss of business statement to the first defendant but no response was forthcoming.
    6. As a direct result of the accident, the plaintiff’s taxi was off the road for about four (4) months until the plaintiff took it upon himself to repair the vehicle.
    7. The vehicle could not generate income during that period.
       

DAMAGES

Legal principles

26. The Supreme Court in William Mel v ColemanPakalia (2005) SC790

and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

1. The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
   
2. Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
   
3. The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
   
4. The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
   
5. If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
   
6. Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
   
7. The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
   
8. The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
   
9. The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)
   

27. I am guided by and will apply these principles when considering each head of damages pleaded in the statement of claim.

Loss of Income

28. Mr So submitted that the plaintiff was running a legitimate taxi business within the city and Central Province. When the taxi was idle for four months, the plaintiff made a loss of K43, 700.00.
    
29. The plaintiff claimed that he earned as follows:
    

30. The plaintiff acknowledged that there is no documentary evidence such as business accounts or financial statements and tax returns, however he invited the court to take into consideration that the taxi was registered and at all material times carrying out its normal business operations when it got involved in the accident. In the circumstances, the Court should do its best on the evidence that was available and award the full amount claimed which was K43, 700.00.
    
31. Justice David made the following observations in the case of Samot v Yame [2020] PGNC 63; N8256 at paragraphs 61-69 of his judgment:
    

“61. It is a well settled principle of law in this jurisdiction that if a defendant causes damage to a plaintiff’s profit-earning asset, the plaintiff is entitled to damages to compensate him for profits lost during the period that is sufficiently reasonable to repair the asset: Abel Kopen v The State (1988-89) PNGLR 659. The plaintiff’s duty to mitigate his loss requires him to take appropriate steps to get the repairs done efficiently and without unreasonable delay: Abel Kopen v The State (1988-89) PNGLR 659.

62. The plaintiff has failed to adduce independent corroborative evidence such as financial statements or audited accounts from accountants supported by bank statements or other business records which would show income generated and liabilities incurred by the business to prove his claim for loss of income of K45, 000.00.

63. The owners of PMV business and trade stores operated by simple Papua New Guineans are required to keep records of their business including appropriate tax returns and produce them in evidence to support a claim for loss of income or profit from such operations. The decision in Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 demonstrates that position.

64. In Graham Mappa v PNG Electricity Commission (1995) PNGLR 170, following an award of K7,800.00 in damages by the National Court in a claim for damages for loss of income following damage caused to the plaintiff’s Isuzu 25-seater bus when it was involved in a collision with the defendant’s vehicle, the defendant appealed to the Supreme Court against the award. In allowing the appeal, the Supreme Court found that the appellant did not establish his damages by the calling of sufficient evidence. The only evidence led by the plaintiff was a statement that his business earned K1,200.00 per week. The Supreme Court found that there was no documentary evidence such as bank records, tax returns or balance sheets or other evidence to support his claim apart from some comparison with another similar business run by someone else. Woods J. at 171 summarised the position in the following terms:

“[I]f you wish to establish matters like loss of profits from the operation of a modern business, then it is necessary to comply with the modern law, for example, producing such records as are required by the law. If you wish to have the advantages of a modern world of business, then you must comply with modern matters like tax laws. This would require appropriate business records to show whether any profit over and above business running costs was earned. And then, if a profit was earned, there are the requirements to pay taxes. The courts have been referring to these requirements in recent years, especially in the operation of shop or trade store businesses. And the Supreme Court, by its ruling, is implying that the same must apply to the operation of a PMV or suchlike public transport business.”

65. In Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 at 172, it was also held that mere assertions and the depositing of sums of moneys in a bank is not sufficient evidence.

66. The Supreme Court in William Mel v Coleman Pakalia (2005) SC790, a more recent case since Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 endorsed the principle enunciated by Injia, J (as he then was) in Jonathan Mangope Paraia v The State (1995) N1343 that where damages cannot be assessed with certainty, it does not relieve the wrongdoer of the necessity of paying damages and the Court must do the best it can. Since its enunciation, this principle has been applied in numerous decisions of the Supreme Court and National Court. This I think is in congruence with Section 158(2) of the Constitution which states that in interpreting the law, the courts shall give paramount consideration to the dispensation of justice. Dismissing the claim based on the principle in Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 considering the peculiar circumstances of the present case will defeat the objective of an award of damages which is to give the claimant compensation for damage, loss or injury he has suffered. In this regard, I note the speech of Lord Blackburn in Livingstone v Rawyards Coal Co, (1880) App Cas 25 at 29 where His Lordship defined the measure of damages as: “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”

67. Although there is no documentary evidence like business records or tax returns, bank statements, I will not dismiss this head of claim as it will not be in the interest of justice to do so.(my emphasis)

68. It has been pleaded in the statement of claim that the PMV bus generated a daily income of K500.00 and after the accident was off the road until 3 March 2014, a total of about 90 days. The plaintiff’s evidence is that the PMV bus generated an income of K500.00 daily (paragraph 4, Exhibit A) and it did not operate for one month (paragraph 11, Exhibit A). Based on the plaintiff’s evidence that the daily income was K500.00, in a month, say 30 days, the income that would have been generated would be K15,000.00. There is no evidence to show how much the driver and boss crew were paid or how much was saved after paying for fuel, spare parts, etc.

69. I reject the submission by the plaintiff that he should be awarded damages in the sum of K45,000.00 for loss of income for a period of 90 days. The evidence produced by the plaintiff is insufficient and does not justify that. I will have to do the best I can applying the principles in Abel Kopen v The State (1988-89) PNGLR 659, Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 and Jonathan Mangope Paraia v The State (1995) N1343. I will award K10,000.00.”

32. The Plaintiff referred this Court to the case of Wabata v Ohue (2016) N7157 whereby His Honour Justice Cannings at paragraph 10 under the heading loss of income said this:
    

10. Mr Pokoa submitted that running the taxi would have earned the second plaintiff K150.00 per day. On the assumption that the taxi would be off the road for 112 days ( comprising 52 Saturdays, as the second plaintiff does not allow it to be used on a Saturday, and 60 other days to account for exigencies ) Mr Pokia submitted that it would have been on the road, generating income , for 253 days. The total amount sought was K150.00 x 253= K37950.00. The problem with the claim , as Ms Wurr pointed out, is that there is no documentary evidence to support it. I uphold Ms Wurr’s submission that the claim should be discounted by 50% and award K18, 975.00.

33. Mr So submitted that the case of Wabata v Ohue (supra) is different to this case as the claim in this case is corroborated by the evidence of another taxi owner. Counsel refers to Exhibit P3 which is the affidavit of Johannes Sent.
    
34. The evidence of Johannes Sent is that he is the manager of Executive Taxi Service, one of the largest providers of taxi service in Port Moresby. His evidence is that each taxi makes the same amount of money each day as claimed by the plaintiff in his statement of claim. His evidence however is not supported by any documentary evidence except a letter with his company’s letter head (Annexure B, Exhibit P3).
    
35. My understanding of Mr So’s argument is that the affidavit of Johannes Sent suffices as “documentary evidence” and corroborates the plaintiff’s claim under this head of damages, therefore the full amount claimed should be awarded. However, the Supreme Court case of Graham Mappa v PNG Electricity Commission (supra) defines “documentary evidence” to include “bank records, tax returns or balance sheets or other evidence to support a claim apart from some comparison with another similar business run by someone else.”
    
36. The evidence of Mr Sent does not meet the definition of documentary evidence. His affidavit attempted to provide a comparative analysis to support the plaintiff’s claim however it fell short. I therefore reject Mr So’s argument on this point.
    
37. I find that the plaintiff failed to produce any documentary evidence to justify the claim for K43, 700.00. The question now is whether I should dismiss this claim.
    
38. To assist me address this issue, I have considered the case of Wabata v Ohue (supra) and Samot v Yame (supra) as these cases provide a useful guide to assist this court in arriving at an outcome that is just and fair, and in the interest of justice.
    
39. Upon considering these cases, I am minded not to dismiss claim nor award the full amount claimed on the basis of lack of documentary evidence.
    
40. If I took the approach taken by Justice Cannings in the case of Wabata v Ohue, I would slash the amount claimed by 50% to arrive at K21, 850.00. However, if I took Justice David’s approach in the case of Samot v Yame, I would award K10, 000.00 under this head. The amount claimed in that case was K45, 000.00 but due to lack of documentary evidence, Justice David only awarded K10, 000.00.
    
41. Mr So submitted that this court should not take the approach taken by Justice Cannings. Counsel did not provide other comparable cases that would strengthen his client’s case to persuade the Court to award the plaintiff the amount claimed.
    
42. The case which was referred to and relied on by Mr So throughout his submissions is the case of Samot v Yame. As already mentioned, the facts in that case are very similar to the present case therefore I will take the same approach and award K10, 000.00 under this head of damages.
    

Spare parts and repair costs

43. This claim was not pleaded in that manner in the statement of claim. However, Mr So submitted that it was pleaded but styled as “Special Damages, including a replacement cost of Plaintiff’s Motor Vehicle”.
    
44. I accept Mr So’s submission on this point, that “replacement cost of Plaintiff’s Motor Vehicle” and “spare parts and repair costs” mean the same thing. I will therefore consider this claim as I am satisfied it was pleaded, and evidence before the court is that the plaintiff used his own money to repair the taxi.
    
45. The plaintiff claims that he spent K12, 000.00 to fix the vehicle. This claim is supported by a number of quotations from several panel shops in Port Moresby including Heliam Motors, PNG Auto Auction Ltd and Minihi Motors. However, no receipts were adduced into evidence.
    
46. In the case of Samot v Yame (supra) a claim for “spare parts and repair cost” was also pleaded. In that case a few receipts were produced at trial apart from a number of quotations. There was also photographic evidence to prove the extent of the damage. The Court in that case awarded the full amount claimed.
    
47. In the present case, receipts and photographs are lacking. The plaintiff did not provide any reason or explanation for not producing them at the trial. Therefore, although I am satisfied that the second defendant’s vehicle did cause damage to the plaintiff’s taxi, I am unable to ascertain the gravity and extent of the damage caused. This evidence is vital as it will assist this Court to decide on the reasonableness of the plaintiff’s claim of K12, 000.00.
    
48. Because there are no receipts, the court is in doubt on the actual amount that was spent by the plaintiff to fix his taxi. The court is always mindful of vague and exaggerated claims, more so in a case like this where the evidence is not sufficient to prove the claim. I therefore cannot award the full amount of K12, 000.00 claimed.
    
49. However, since I have already made findings of fact that the plaintiff did spend some money to fix his taxi, I must make an award to the plaintiff under this head that is reasonable and within the law in these circumstances. I am guided by the approach taken by Justice Cannings in the case of Wabata v Ohue(supra) and will deal with this head of claim in that manner, by slashing this claim by 50% due to lack of evidence. I accordingly award K6, 000.00 under this head.
    

Stress and depression

50. The plaintiff submitted that an award of K6, 000.00 is appropriate under this head for the following reasons:
    
    • he is a family man living in the city and his only source of income was cut off for four (4) months due to the negligent driving of the employee of the second defendant
      
    • the plaintiff repaired the taxi with his own money;
      
    • the second defendant made no effort to assist the plaintiff even after several requests were made.
      
      51. Damages for distress, frustration, vexation, injured feelings, hardship, etc, are part of general damages: Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128; Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367.
          
52. In Samot v Yame (supra) Justice David considered this issue and awarded K6, 000.00 under this head. In that case the plaintiff made a claim for damages after his PMV bus was damaged in an accident caused by the negligence of the defending party. The PMV bus was off the road for a month, and the plaintiff took steps to fix his bus and get it back on the road due to lack of response from the defending party for an out of court settlement.
    
53. The plaintiff in this case sustains his livelihood through his taxi business. Since the taxi was off the road and not generating income for four months, the plaintiff and his family were financially handicapped and struggled to make ends meet. The plaintiff had to spend his own money to fix the taxi so that he could continue his business to support his family. I therefore find that the plaintiff did suffer during this time and should be compensated for his suffering.
    
54. I accordingly award K6, 000.00 as submitted by counsel for the plaintiff.
    

SUMMARY OF DAMAGES AWARDED

55. The summary of damages awarded is as follows:
1. Damages for loss of income : K10,00.00
2. Spare parts and repairs : K6,000.00
3. Damages for stress and difficulty : K6,000.00
   

Total: K22, 000.00

INTEREST

56. The Plaintiff seeks interest at a rate of 8% annually pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, from filing of the writ of summons which is 05 December 2019, to the date of judgement.
    
57. The awarding of interest under the Judicial Proceedings (Interest on Debts and Damages) Act is discretionary: Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24.
    
58. In the exercise of my discretion, I will award interest at the rate of 8% annually on the total amount awarded of K22,000.00 from the date of filing of the Writ of Summons on 5 December 2019 to the date of judgment, 10 September 2021, which is a total of 1 year, 9 months and 4 days.
    
59. I assess and award interest at K3, 080.00.
    

COSTS

60. Costs will follow the event, i.e. the plaintiff is awarded costs. This means that second defendant shall pay the plaintiff’s costs on a party-party basis, which shall, if not agreed, be taxed.
    

JUDGMENT

61. The formal orders of the Court are:
    
1. The Second Defendant shall pay to the Plaintiff damages in the sum of K22,000.00 plus interest of K3, 080.00 being a total sum of K25, 080.00.
   
2. Costs shall follow the event, i.e., the Second Defendant shall pay the Plaintiff’s costs on a party-party basis, which shall, if not agreed, be taxed.
   
3. Time is abridged.
   

Judgment and orders accordingly.

________________________________________________________________

Ketan Lawyers: Lawyer for the Plaintiff

Lawyer for the First and Second Defendant: The Second Defendant In person