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Ruing v John [2023] PGNC 335; N10497 (5 October 2023)

N10497

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 286 OF 2022

BETWEEN:
KONTZ RUING
Plaintiff

AND:
DAVID JOHN
Defendant

Lae: Dowa J
2023: 21^st September & 5^th October

NEGLIGENCE – motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent – tort of negligence.

DAMAGES- Plaintiff has burden to prove damages with credible evidence-quotation for repairs is insufficient-economic loss must be supported by documentary evidence of income -assessed and Judgment granted.

Cases Cited:
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot The State (1995) N1350
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Counsels:

K Ruing with W. Ruing, Plaintiff in person
No appearance for the Defendants

JUDGMENT

5th October 2023

1. DOWA J: This is a judgment on issues of both liability and damages.
   

Facts

2. The Plaintiff is the owner of a Toyota Coaster Bus, Reg No. P0756H. The Plaintiff’s bus collided with the Defendant’s Motor Vehicle, a white Toyota Landcruiser, 10-seater bearing Registration No. CAV 698. The accident took place on 23^rd December 2020 at around 7:30 pm at the 9-mile junction/Bulolo turn off along the Okuk Highway. At the time of the accident, the Plaintiff's Bus was proceeding from the direction of Nadzab towards Lae city. The defendant was driving from the direction of Lae towards Nadzab. The Defendant who was said to be under the influence of liquor left his lane on high speed and collided into the Plaintiff’s Bus. As a result of the accident, the Plaintiff’s bus was extensively damaged and would cost up to K57,000.00 to repair.
   
3. The Plaintiff alleges the accident was caused by the negligence driving of the Defendant. The accident was investigated by the Police. The Defendant was then charged and convicted by the Lae District Court for negligent driving amongst other traffic offences.
   

Plaintiffs’ Claim

4. The Plaintiff alleges because of the accident, he lost his bus, the only source of income. He, therefore, claims against the defendant damages for the loss of the bus, the loss of income and special damages and interest.
   

Proceedings

5. The proceedings were filed on 22^nd June 2022. The Defendant was served a copy of the Writ of Summons by one Edwin Harig Kofia on 30^th July 2022. The Defendant did not file a Notice of Intention to Defend nor a Defence. The Plaintiff filed and served a Notice of Motion for Default Judgment on the Defendant on 20^th July 2023. The Defendant did not attend Court on the return date for the motion. On 1^st August 2023, default Judgment was entered for the Plaintiff in damages to be assessed. The matter was then fixed for trial on assessment of damages on 21^st September 2023. The Defendant was served a copy of Notice of Trial on 26^th August 2023. The Defendant did not turn up in Court on the day of trial. The Court granted leave for the Plaintiff to proceed with the trial in the absence of the Defendant. The Plaintiff presented his affidavit evidence and made oral submissions. The Court reserved the ruling which is delivered now.
   

Issues

6. The issues for consideration are:
   
   1. Whether the Defendant is liable
   2. If so, how much in terms of damages, is the Plaintiff entitled to.
      

Evidence

7. The Plaintiff relies on the following Affidavits which were tendered into evidence:
   
   1. Affidavit in Support – Konts Ruing

Filed 14^th July 2023 (Exhibit P2)

2. Additional affidavit – Konts Ruing

Filed 11^th August 2023 (Exhibit P3)

8. This is the summary of the Plaintiff’s evidence. He says he is the registered owner of the Toyota Coaster Bus, Reg. No. P0756H. On the evening of 3^rd December 2020, his Bus got involved in a road accident at 10 Mile, along the Okuk Highway. His Bus was returning from Nadzab after dropping off passengers. At the junction/Bulolo turn off, the Defendant who was driving a Toyota Land Cruiser, 10-Seater Reg. No. CAV 698 coming from the opposite direction collided into the Plaintiff’s Bus. The accident happened when the defendant who was on high speed, left his lane and drove straight into the Plaintiff’s bus. The Plaintiff says the defendant was driving under the influence of liquor. The accident was reported to police who investigated the accident. The defendant escaped from the scene but was eventually arrested and charged with various charges including driving without due care and attention. The defendant was found guilty, convicted, and fined K1,200.00 by the Lae District Court on 11^th June 2021. As a result of the accident, the Plaintiff says he lost his only source of income as the bus is extensively damaged. He tendered the bus to Ela Motors for repair cost, and it was assessed that it would cost K57,507.55 for the repairs. As he could not afford, the repairs were not done, and he suffers loss of income. He says he was licensed to run a PMV Bus Service. He was ferrying passengers for fares and was earning an average of K450.00 per day. Due to the accident and damage to the bus he no longer earns any income. He made a request to the Defendant to settle the claim. The Defendant offered to settle only K30,000.00 which he says is too low and insufficient. He has not agreed to accept the amount of K30,000.00 offered by the Defendant. He now claims the full sum of K57,507.55 with loss of income for six months.
   
9. The Defendant did not defend the proceedings and thus no rebuttal evidence is presented.
   

Consideration

Whether the Defendant is liable.

10. Default judgment was entered for the Plaintiff on 1^st August 2023. Although default judgment was ordered against the Defendant, liability remains open for consideration should there be any change of circumstances or cause for reconsideration. In the present case, there is evidence that the defendant was negligent. He was driving on high speed, left his lane and hit the bus. He was driving a vehicle that was unregistered on a public road. He was found guilty and convicted by the District Court on several traffic offences. He also conceded liability by offering to settle the claim. He signed two separate agreements and Statutory Declarations conceding liability. In the circumstances, I find the issue of liability is settled in favour of the Plaintiff and affirm the default judgment.
    

What is the appropriate amount the Court should award for Damages?

Burden of Proof
11. Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

12. In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:
“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify 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:

• 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.)
  
• 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.)
  
• 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.)
  
• 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.)
  
• 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.)
  
• 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.)
  
• 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.)
  
• 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.)
  
• 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.)”
  

13. I will adopt and apply these principles in the present case when considering each head of damages sought by the Plaintiff.

Consideration

14. How much in terms of damages is the Plaintiff entitled to? The Plaintiff claims the following heads of damages in the statement of claim:

1. a) Loss of vehicle/repair costs.
2. b) Economic loss.

100. c) General Damages

4. d) Special Damages
5. e) Interest.
6. f) Costs
   

Loss of vehicle/Repair Costs

15. The main claim is for the cost of repairs. The Plaintiff claims the sum of K57,501.55 in the statement of claim for the cost of the repairs. The Plaintiff produced a quotation for the repairs from Ela Motors Lae dated 7^th December 2020 for said amount. The quotation was obtained about four days after the accident. The Plaintiff explained he did not tender the bus for repairs because the repair cost was too high, and he could not afford it. The Plaintiff says he purchased the vehicle in 2012. However, he has not provided evidence of the pre accident value from a motor dealer. He has not provided the details as to the purchase price and age of the vehicle. This information may assist in determining the value of the vehicle and the loss suffered.

16. The Plaintiff submitted for an award of K57,501.55 based on the quotation for the cost of repairs. In my view, the Plaintiff has not satisfactorily proved that he is entitled to an award for K57,501.55. This amount is not supported by evidence except for the quotation. A quotation is not an invoice. The Plaintiff has a duty to prove his claim with credible evidence. I must remind myself of vague and uncorroborated claims: (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

17. However, 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.)

18. I am prepared to consider an amount that is reasonable in the circumstances. I do not intend to leave the Plaintiff without a remedy, especially where the defendant has shown his willingness to settle the claim at K 30,000.00.

19. I note from the photographs tendered into evidence that the Plaintiff’s vehicle was extensively damaged from the front right end side. The repair assessment from Ela Motors tendered into evidence is K 57,501.55. The quotation for repair appears to be reasonable as it is done by the Toyota dealer. I am prepared to assess an amount close to the quote. In my view, a sum of K40.000.00 (70% of the quotation) is sufficient compensation for the damage done to the Plaintiff’s vehicle and would award same.

Economic Loss

20. The Plaintiff pleads economic loss in the sum of K54,000.00 being for loss in PMV fares for six (6) months. The law on economic loss is settled in this jurisdiction. A claim for loss of income must be supported by proper documentation, including tax and accounting details, and bank statements. Refer: Peter Wanis v The State (1995) N1250, Graham Mappa v PNG Electricity Commission (1995) PNGLR170, Kamaip Trading v George Wanguho, Kekeral Farming v Queensland Insurance (1995) PNGLR 405, and Marshall Kennedy v Coca Cola Amatil (2011) N4946.

21. The Plaintiff provided evidence that the bus was issued a PMV License No. 22372 at the material time. It was issued with a PMV Reg No. P0756H. He pleads loss at the rate of K450 per day and makes a claim for six (6) months which amounts to K54,000. However, he produced no explanation or details of how he arrived at these figures. He has produced no records of daily takings prior to the accident. He produced no bank statements to confirm the deposits of the daily takings. In the circumstances, I will allow for a daily income lower than the amount claimed. For the purposes of assessment, I will fix a gross sum of K300 per day for the PMV fares. After allowing expenses for maintenance, fuel, driver, and crew wages, the residue of the claim, in my view is K150.00 per day. I will allow for a six-day weekly income which amounts K900.00. And finally, I will allow the income loss to be limited to three (3) months period, being a reasonable time to repair the bus. A loss of income at the rate of K150 per day for a six (6) day week for three months would amount to K10,800.00. I will make an award for that sum.

Special damages

22. The Plaintiff pleads a claim for special damages. He has not given any evidence supporting a claim under this head of damages. There shall be no award.

General Damages

23. The Plaintiff submits that he is entitled to general damages for pain and suffering. He says due to the accident and loss of income and the defendant’s delay in favorably responding to his claim, he suffered frustration and fell ill. In my view this is not an appropriate case for general damages and will not make an award under this head of damages.

Total Damages

24. The total amount for damages shall be K50,800.00

Interest

25. The Plaintiff is claiming interest. I will allow interest at the rate of 8% on the amount assessed. Interest is to commence from date of writ of summons, (22/06/2022) to date of judgment (05/10/ 2023) for a period of 470 days. Interest is calculated as follows:

K 50,800 x 8/100 = K 4,064.00

K 4,064/365 days = K 11.13 per day

K11.13 x 470 days = K 5,231.10

26. The total award inclusive of interest is = K 56,031.10

Costs

26. The Plaintiff is claiming cost. I will allow cost.

Orders

27. The Court orders that:

1. Judgment be entered for the Plaintiff in the sum of K 56,031.10 inclusive of interest.
2. Post Judgment interest shall accrue at the rate of 8% until settlement.
3. The Defendant shall pay the cost of the proceedings to be taxed, if not agreed.
4. Time be abridged.

______________________________________________________________
Kontz Ruing with Wamp Ruing : Plaintiff in person.
No appearance by the Defendant