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Imatana v Manayau [2024] PGNC 337; N11010 (22 September 2024)

N11010

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1658 OF 2015


BETWEEN
ESTHER IMATANA
Plaintiff


AND
DAVID MANAYAU
First Defendant


AND
MILNE BAY PROVINCIAL HEALTH AUTHORITY
Second Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Alotau: Toliken, J.
2024: 22nd September


DAMAGES – Negligence – damage to vehicle – tortfeasor employee of Public Health Authority – assessment of damages – claim for - general damages for anxiety, stress, hardship and suffering – loss of business – special damages


Cases Cited:
Papua New Guinean Cases


Mel v Pakalia (2005) SC790
Limitopa v The State [1988-89] PNGLR 364
University of Papua New Guinea (2011) SC1119
Paraia v The State (1995) N1334
Goodenough v The State (2001) N2157
Likui Trading Ltd v Selna (2011) N4530
Warivama v Sapau (2013) N5319
Aigilo v Morauta, Prime Minister (2001) N2103


Overseas Cases


Bonham Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177


Counsel:


T Ilaisa, for the Plaintiff
M Tukiliya with C Tolo’ube, for the Defendants


JUDGMENT


22nd September 2024

  1. TOLIKEN J: This is a trial for assessment on damages after default judgment was entered against the defendants on 23 August 2019.

Background Facts

  1. On the 12 June 2014, First Defendant, driver of a vehicle belonging to the Second Defendant, bearing the registration number PAF 249 drove straight into the rear of the Plaintiff’s PMV Bus registration number P.17631 and caused substantial damage. The incident occurred when Plaintiff’s PMV stopped in front of a pedestrian crossing to give way to pedestrians when the offending vehicle ran straight into the PMV bus, without slowing down.
  2. The Plaintiff’s PMV bus sustained extensive physical damage which includes, back/rear door completely damaged, required new door assembly, rear wind screen glass completely shattered to pieces, requiring new glass. The door lock and catchers damaged, wiper motor and arm assembly damaged, rear bumper assembly damaged, and registration plate assembly damaged. The damages were the direct result of the First Defendant’s negligence.
  3. The First Defendant was charged and convicted by the Traffic Court on the 1 July 2014. Amongst the orders made the Traffic Court was an order, ordering the First Defendant to pay K4, 145.90 to my client based on a quotation from Walters Workshop dated 16th June 2014.
  4. Despite the order, the Plaintiff never received the money, and Walters Workshop has shut down its operations. Hence, the Plaintiff exercised her rights to file civil damages claim. Initially she sought assistance from the District Court Clerk in Alotau to file a civil case to claim damages which would amount to the total damages incurred including loss of business. However, she was advised that the District Court could only award a maximum of K10,000.00 in damages.
  5. On 19th June 2014, she obtained a quotation from Ela Motors in Alotau for an assessment of how much she needs to repair here damaged bus and that expense amounts to K9, 655.05. The loss of business was calculated to be K3, 300.00 for the time her bus was out of service. She had sought assistance from a friend who was able to quickly work on her bus just to get it back on the road. She was charged K2, 100.00, for his labour cost hence, the total amount she was claiming was K15, 550.05.
  6. She initially brought the matter up with Milne Bay Provincial Health Authority (MBPHA) to meet her claim for damages, and so she had been corresponding with them and also had meetings with the Chief Executive Officer, Mr. Billy Naidi. However, the CEO stated clearly to her that he cannot pay out that money without a valid Court Order to do so.
  7. She filed her Writ of Summons against the defendants on 18th November 2015. The Defendants were accordingly served a copy of the writ on various dated immediately after the filing and lifting of a sealed copy of the Writ. She, however, amended her Statement of Claim later which was also subsequently served on the defendants.
  8. Default judgment was entered against the defendants on 23 August 2019. Apart from the fact that the tortfeasor collided with the Plaintiff’s vehicle in the scope of his employment with the Second Defendant, an instrumentality of the State, and the Third Defendant being held vicariously liable. Section 4 of the Public Health Authorities Act 2007.

Effect of Default Judgment


  1. The effect of the default judgment is that the facts as pleaded in the Plaintiff’s statement of claim stand as proved. It is settled though that liability may be revisited if the facts pleaded are ambiguous and bereft of clarity. As the Supreme Court said in Mel v Pakalia (2005) SC790, the proper approach for the trial court to take is:
  2. I am satisfied that the cause of action and facts in this case have been pleaded with sufficient clarity hence liability stands proven.

Relief Claimed


  1. The Plaintiff claimed the following relief in her Amended Statement of Claim:

Issues


  1. What falls for me to determine here is what damages should be awarded to the Plaintiff. In other words, has she proven the damages which she is asking for?

Evidence


  1. To prove he damages, the Plaintiff relies upon her affidavit sworn and filed on 2 December 2019.

General Damages


  1. General damages are intended to restore the plaintiff – as far as possible – to the position he was prior to the wrongful conduct from which he suffered injury – be it in tort or contract. General damages are neither punitive nor are they a reward. (Limitopa v The State [1988-89] PNGLR 364).
  2. For the Plaintiff here, she seeks to the financial position she was before the damage done to her bus through the negligence of the First Defendant.
  3. The Plaintiff seeks damages in the sum of K9655.05 which is the amount quoted by Ela Motors (Alotau) to repair and restore her bus to the condition it was before the collision. She attaches a copy of an invoice from Ela Motors (Annexure “C”) to her affidavit which showed the parts and accessories needed for the job.
  4. This head of damages has been proven and I therefore award the sum claimed – K9655.05.

Loss of Business


  1. For a plaintiff to succeed in his claim for loss of business he must prove his losses with certainty and particularity, said the Supreme Court in University of Papua New Guinea v Duwaio (2011) SC1119. This was an appeal from a decision of the National Court which had upheld an appeal against an order of the District Court. In an action for wrongful dismissal where the relief pleaded was reinstatement, the District Court awarded damages which the complainant did not plead or asked for. The Supreme Court there adopted as appropriate to the circumstances of Papua New Guinea the common law principle derived from Lord Goddard CJ’s speech in Bonham Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177. At p.178 his Lordship said:

"Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damages, it is not good enough to write down particulars and so to speak, throw them at the hand of the court saying, ‘this is what I have lost, I ask you to give me these damages.’ They have to prove it."


  1. This principle was first adopted and applied by Injia J (as he then was) in Paraia v The State (1995) N1334 and in numerous cases thereafter. For instance, Salika J (as he then was) referred to this principle in Goodenough v The State (2001) N2157 and said:

"I adopt these statements, as I am of the view that they are reasonable and logical and should be applied by the courts in Papua New Guinea. Every plaintiff who wishes to be put in the same position as he would have been in had the tort not been committed has an obligation to prove his claim. He has to call evidence relevant to prove his damage. If he fails to provide the relevant evidence, his claim is likely to fail."

  1. A plaintiff is also required to plead whether he is claiming loss of business profits or business opportunity in the first place. This he then must strictly prove by providing appropriate business records, bank statements and even tax returns (Likui Trading Ltd v Selna (2011) N4530 per Kawi J).
  2. In the instant case, the Plaintiff pleaded that she operated the vehicle as a PMV and makes about K550 per day. The vehicle was out of operation for 6 days, so her loss was K3300.00. She did not plead where whether that was for loss of profit or business opportunity. And she has not proved her loss, whatever it was with clear evidence. She has not produced business records, bank statement and since she was was operating a business and ought to have registered with the Internal Revenue Commission, her tax returns.
  3. As it is, she did exactly what Lord Chief Justice Goddard enjoined against in Bonham Carter v Hyden Hotel Ltd (supra). In the words of the Lord Chief Justice, she is in fact telling the Court, “This is what I lost, please give me these damages” without having to prove her loss.
  4. The Plaintiff has therefore failed to discharge the burden placed on her to prove her claim with clarity and particularity, hence no damages shall be awarded to her for this head of damages.

Damages for Anxiety, Stress, Hardship and Suffering

  1. I am satisfied that the Plaintiff suffered anxiety, stress, hardship and suffering because of the damage to her vehicle which she had proven to have just completed repaying the loan she took out from the National Development back. She had to scramble to put the bus back on the road. The quotation for repairs by Ela Motors was quite substantial and the Plaintiff would have been stressed as this meant that she might not be able to have her bus operating again quickly. I accept that she would have suffered from anxiety as well.
  2. So how much should be awarded to her? Mr. Ilaisa cited a few cases for comparison where damages were awarded for this head of damages. Most of these were awards for stress, anxiety, frustration, distress and hardship stemming from wrongful dismissal.
  3. A pertinent case would be Warivama v Sapau (2013) N5319. There the plaintiff’s vehicle was involved in a collision with the defendant’s vehicle and sustained extensive damage. The plaintiff is a private surveyor and used the vehicle to carry heavy survey equipment to and from works sites. He suffered business loss but was able to mitigate his loss by hiring a vehicle for 6 days while his vehicle underwent repairs.
  4. The court, Makail J, compared the circumstances of the plaintiff with those in Aigilo v Morauta, Prime Minister (2001) N2103. Aigilo was dismissed as Commissioner of Police and sued for unlawful termination. Among the relief he sought was damages for frustration, stress and hardship. He was awarded K20,000.00 because he proved that he was found by his doctors to have suffered from acute nephrotic syndrome which was attributed to his dismissal.
  5. Makail J found that the plaintiff Warivama did not suffer any illness hence he awarded him K5000.00 only. Mr. Ilaisa urged me to grant a similar award to the Plaintiff for similar reason. I will grant the Plaintiff K5000.00 for this head of damages.

Special Damages

  1. Special damages or out of pocket expenses must also be strictly proven by the provision of relevant evidence such as receipts.
  2. I am satisfied that the Plaintiff has proven, with evidence, that she incurred the expenses he pleaded. First, she has proven that she expended K2100.00 for basic emergency repairs on the bus inclusive of cost of labour. She provided copies of receipts of payment from one Frazer which are Annexures “E” and “F” to her affidavit.
  3. She also that she spent K329.45 at Nako Marine for acrylic glass (see annexure “D”). Finally, she provided proof of payment of an accident report (see annexure “G”). She claims a total of K2454.45 which I will grant.

Total Award

  1. A summary of the damages awarded to the Plaintiff is:

Total = K17,109.50

Interest

  1. Interest is awarded at the rate of 2% from the date of accrual of the cause of action on 12 June 2014 to the date of judgment which is 22 September 2024. Using the formula - Damages assessed x Interest Rate x number of years (K17,109.50 x 2% x 10.03) – the interest works out to be K3432.17.
  2. The total award is therefore K20,541.67 which shall be paid by the Third Defendant.

Judgment

  1. I direct that judgment be entered in the following terms:
    1. The Third Defendant shall pay damages to the Plaintiff in the sum of K17,109.50.
    2. The Third Defendant shall pay to interest in the sum of K3432.17.
    3. The Third Defendant shall pay the Plaintiff’s costs on a party/party basis which if not agreed upon shall be taxed.

Ordered accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants

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