N11048

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 40 OF 2024

BETWEEN
KUIMA SECURITY SERVICES LIMITED
Plaintiff

AND:
PHILEMON PHILIP
First Defendant

AND:
ASILA SECURITY LIMITED
Second Defendant

Lae:    Dowa J
2024:	2nd &14th & 22nd 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- assessment of 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 -whether the employer is vicariously liable for the actions of employed driver-assessed and Judgment granted.

Cases Cited:
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot 
The State (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 
Tirima -v- Angau Memorial Hospital Board (2005) N2779

Counsel:
K Borifa, for the Plaintiff 
No appearance, for the Defendants

JUDGMENT

22nd October 2024

1.  	DOWA J:   This is a judgment on assessment of damages.

2. 	The Plaintiff is the registered owner of a motor vehicle, a Toyota Land Cruiser, Station Wagon, Registration No LBT 652. The Plaintiff claims against the Defendants damages arising out of a motor vehicle accident involving the Plaintiff’s vehicle and the second Defendant’s vehicle, also a Toyota Land Cruiser, Registration No HAQ 325.  The accident took place on 25th November 2023 at the roundabout of Milfordhaven and Aircorps roads in the city of Lae, Morobe Province.

Proceedings
 
3.     The proceedings were filed on 28th February 2024. The second Defendant was served a copy of the Writ of Summons by one David Eremas on 13th March 2024. The Defendants filed a Notice of Intention to Defend on 23rd April 2024. However, the Defendants did not file their Defence. The Plaintiff filed and served a Notice of Motion for Default Judgment on the Defendants on 27th May 2024. The Defendant did not attend Court on the return date for the Motion hearing.  On 14th June 2024, a default Judgment was entered for the Plaintiff in damages to be assessed. The matter was then fixed for trial on assessment of damages on 13th September 2024. The Defendants were advised of the hearing by the Plaintiff but made no appearance. The hearing was rescheduled for 2nd October 2024.  The Defendant was served a copy of Notice of Hearing on 17th September 2024. The Defendant did not turn up in Court on the day of trial.  The Court proceeded to the hearing on assessment of damages in the absence of the Defendant.  The Plaintiff tendered its affidavit evidence and presented submissions thereafter.  The Court reserved the ruling which is delivered now.

Evidence

4.     The Plaintiff relies on the following Affidavits which were tendered into evidence:

1.	Affidavit of Atus Hoks 30th August 2024 (Exhibit P1)
2.	Affidavit of John Kagar Filed 30th August 2024 (Exhibit P2)
3.	Affidavit of Alex Temambo Filed 5th September 2024 (Exhibit P3)

5.     This is the summary of the Plaintiff’s evidence. The Plaintiff is the registered proprietor of the motor vehicle, a Toyota Land Cruiser Registration No LBT 652. The Plaintiff’s vehicle collided with the second Defendant’s Motor Vehicle, also a Toyota Landcruiser, 10-seater bearing Registration No.HAQ 325.  The accident took place on 25th November 2023 at around 1.00 am at the roundabout of Milfordhaven and Aircorps roads in the city of Lae, Morobe Province. The Plaintiff’s vehicle was driven by one Atus Hoks, an employed driver of the Plaintiff.

6.      At the time of the accident, the Plaintiff's vehicle was proceeding from the direction of Lae main market along the Aircorps Road towards the intersection of the Milfordhaven and Aircorps while the Second Defendant’s vehicle was driving up from Lae main wharf along the Milfordhaven Road. The first Defendant, one Philimon Philip, who was on high speed, failed to stop and give way to the Plaintiff’s vehicle travelling to his right-hand side who has the right of way. The Defendant’s vehicle collided into the Plaintiff’s vehicle causing external damage to its left-hand front tyre and rear taillights with its front bumper. As a result of the accident, the Plaintiff’s vehicle was extensively damaged and cost K 35,377.10 for the repairs. 

7.     The Plaintiff alleges the accident was caused by the negligence driving of the first Defendant, an employed driver of the second Defendant.  The accident was investigated by the Police.  The first Defendant was then charged and convicted by the Lae District Court for driving without Due Care and Attention

8.     As a result of the accident, the Plaintiff’s vehicle was extensively damaged. The vehicle was taken to PNG Motors for repairs. It took 53 days for the repairs and cost Plaintiff K 35,377.10. The Plaintiff alleges it suffered loss of income for the period when the vehicle was off the road for repairs. The Plaintiff therefore claims against the defendants K 35,377.10 for the repair costs and K 35,000 for loss of income at the rate of K I,000 per day for 35 days. 
 
9.     The Defendants did not defend the proceedings and thus no rebuttal evidence is presented.

Issues

10.     The issues for consideration are:  

a)	Whether the Defendants are liable
b)	If so, how much in terms of damages is the Plaintiff entitled to.

Whether the Defendant is liable.

11.     Default judgment was entered for the Plaintiff on 14th June 2024.  Although default judgment was ordered against the Defendants, liability remains an open issue for consideration should there be any change of circumstances or cause for reconsideration.  In the present case, there is evidence that the first defendant was negligent.  He was driving at high speed, failed to give way to the Plaintiff’s vehicle which had the right of way and hit the Plaintiff’s vehicle.  The first Defendant was also driving a vehicle that was unregistered on a public road.  He was found guilty and convicted by the District Court of several traffic offences.  For this proceeding, the Defendants were served relevant notices of the hearing but have continuously failed to attend Court to defend the proceedings. 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?

12.	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 (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.

13. 	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.)”

14. 	I will adopt and apply these principles in the present case when considering each head of damages.

Consideration

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

      a) 	K 35,377.10 for repair costs.
      b) 	K 35,000.00 for economic loss.
      c)  	K 20,000.00 for general damages
      d)  	Special Damages
      e) 	Interest.
      f) 	Costs

  Loss of vehicle/Repair Costs
          
16.  The main claim is for the cost of repairs. The Plaintiff claims the sum of K 35, 377.10. The Plaintiff has produced two invoices for the repairs totalling K 35, 377.10. The Plaintiff has also produced evidence of the payments made to PNG Motors for the repairs. The Plaintiff’s evidence for the repair cost is not challenged by the Defendant. I am satisfied on the balance of probability that the Plaintiff has incurred the cost it claims. The Plaintiff is entitled to an award of K 35,377.10 for the repair costs and I shall so order. 

 Economic Loss

17.	The Plaintiff pleads economic loss in the sum of K35,000.00 being for loss for escort and transportation of cash for clients at the daily rate of K 1000 per day for the 35 days. The Plaintiff submits it has a business arrangement with City Pharmacy Ltd and Lotus Enterprises Ltd for providing escort services at the hourly rate of K 150 and K 170 respectively. On average it amounts to K 1,000 per day. The Plaintiffs vehicle was in the workshop for 53 days and discounting 18 days for weekends and public holidays, the Plaintiff claims loss for the 35 working days at the rate of K 1000 per day totaling K 35,000.00.
 
18.  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.

19.	The Plaintiff has not produced evidence of monthly income for the escorts for the periods prior to and after the accident to show the fluctuation of the income, even for the period immediately after the vehicle was returned from the workshop. The evidence produced is for the month of June 2024 but does not show details of the motor vehicle used. The Plaintiff did not produce any evidence in the form of contract documents to show the existence of the contract and rates of hire at the time of accident. Furthermore, the Plaintiff has not given an explanation why the Plaintiff could not use other vehicles in their escort business.  In these circumstances, I will not allow for the full amount claimed. However, because of the nature of the business the Plaintiff is involved in, 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 35 working days totaling K 10,500.00. I will make an award for that sum only.

Special damages

20.	The Plaintiff pleads a claim for special damages.  As an award of K35,377.10 has been made for the repair cost, there shall be no further award under this head of damages. 

        General Damages

21.   The Plaintiff claims K20,000.00 for general damages. General damages are a claim for pain and suffering. No evidence is presented for pain and suffering. 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

22.	The total amount for damages to be awarded shall be K45,877.10

         Interest

23.	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, (28/02/ 2024) to date of judgment (22/10/ 2024) for a period of 242 days.  Interest is calculated as follows:

	K 45,877.10 x 8/100					=	K 3,670.17 
	K 3,670.17 /365 days				= 	K      10.06 per day
	K 10.06 x 242 days					=	K 2,434.52

24.	The total award inclusive of interest is		=	K 48,31162

	Costs

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

Whether the second Defendant is vicariously liable for the judgment debt.

26.  The final question is whether the second Defendant should be vicariously liable for the actions of the first Defendant.  Vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility.  Refer Tirima -v- Angau Memorial Hospital Board (2005) N2779. 

27.	It is pleaded that the first Defendant was an employee of the second Defendant based in Lae at the time of accident. The first Defendant drove the second Defendant’s motor vehicle in the normal course of business. The second Defendant filed a Notice of Intention to Defend on behalf of the first and second Defendants. There is evidence that the first Defendant is an employed driver of the second Defendant. In the absence of any contention to the contrary, I find the second Defendant is vicariously liable for the actions of the first Defendant.

	Orders

28.	The Court orders that:

1.	Judgment be entered for the Plaintiff in the sum of K48,311.62 inclusive of interest.
2.	The first and second Defendants are jointly and severally liable to settle the judgment debt.
3.	Post Judgment interest shall accrue at the rate of 8% until settlement.
4.	The Defendants shall pay the cost of the proceedings to be taxed, if not agreed.
5.	Time be abridged.
______________________________________________________________
Kesno Lawyers: Lawyers for the Plaintiff
Asila Security Ltd:  Appearance in Person