Banduwara Waranumbo v Hyper Construction Ltd

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 November 2012
• Court: National Court
• Judgement Number: N4882

Full : WS NO 870 of 2009; Banduwara Waranumbo v Hyper Construction Limited (2012) N4882

National Court: Cannings J

Judgment Delivered: 9 November 2012

N4882

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 870 OF 2009

BANDUWARA WARANUMBO

Plaintiff

V

HYPER CONSTRUCTION LIMITED

Defendant

Madang: Cannings J

2012: 21 September, 19 October, 9 November

DAMAGES – negligence – assessment of damages after entry of default judgment – motor vehicle accident – damages claimed for vehicle repairs, business losses and pain and suffering.

A vehicle owned by the first defendant and driven by its employee collided with a truck, a profit earning asset, owned by the plaintiff, causing damage to the truck. The plaintiff commenced a negligence action and succeeded in establishing liability against the defendant by default judgment. At a trial on assessment of damages the plaintiff claimed three heads of damage: cost of new truck K89,720.00, loss of income K1,206,880.00 and pain and suffering K20,000.00, a total claim of K1,316,600.00. The defendant argued that nothing should be awarded as the plaintiff failed to produce evidence that he suffered any loss: there was insufficient evidence that he owned the truck and if he did own it, there is no evidence of its replacement value or business records.

Held:

(1) The presumption arises on entry of default judgment that the judgment resolves all questions of liability on the matters pleaded in the statement of claim. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and causes of action are pleaded with sufficient clarity.

(2) Here the facts and cause of action are clear: there was a motor vehicle accident caused by the negligence of the defendant’s driver, which caused damage to the plaintiff’s vehicle, giving rise to a cause of action in negligence. There was no good reason to inquire further into the correctness of the judgment on liability.

(3) The plaintiff was entitled not to the cost of a brand new vehicle but to the replacement value of the vehicle, which was assessed at K40,000.00.

(4) 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 reasonable to repair the asset. The claim for business losses suffered due to lack of evidence. A notional profit of K3,000.00 per month was allowed and the reasonable time for repair or replacement was three months, thus K9,000.00 was awarded.

(5) The claim for pain and suffering was nebulous and without merit. Nothing was awarded.

(6) The plaintiff was awarded damages of K40,000.00 + K9,000.00 = K49,000.00, plus interest of K18,620.00, being a total judgment sum of K67,620.00.

Cases cited

The following cases are cited in the judgment:

Abel Kopen v The State [1988-89] PNGLR 655

Albert Baine v The State (1995) N1335

Andrew Kewa v Johnny Lus [2007] PNGC 3

Daniel Jifok v Kambang Holdings Ltd (2008) N3475

Daniel Occungar v Luke Kiliso (2010) N4102

Desmond Guasilu v Enga Provincial Government (2012) N4774

Jonathan Mangope Paraia v The State (1995) N1343

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Livingston v Raywards Coal Co [1880] 5 App Cases 25

Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07

Peter Wanis v Fred Sikiot and The State (1995) N1350

Sam Manasseh v The State (2011) N4469

Samuel Roth v Samuel Waironak (2011) N4452

William Mel v Coleman Pakalia (2005) SC990

Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages after entry of default judgment.

Counsel

B W Meten, for the plaintiff

S Kesno, for the defendant

9 November, 2012

1. CANNINGS J: On Thursday 7 February 2008 there was a collision between:

· a Daihatsu Delta truck, claimed to be owned by the plaintiff, Banduwara Waranumbo, and driven by his employee, John Urambari; and

· a Toyota Landcruiser claimed to be owned by the defendant, Hyper Construction Ltd, and driven with its authority by its employee, Sam Manasseh.

2. The collision occurred on the Sepik Highway near Wewak, East Sepik Province. No one was seriously injured but the Daihatsu, which was a Public Motor Vehicle (PMV), suffered serious damage and was rendered unroadworthy. Mr Manasseh was charged with a traffic offence and convicted by the Wewak District Court and an appeal against his conviction was dismissed by the National Court (Sam Manasseh v The State (2011) N4469). The plaintiff commenced a negligence action against the defendant. He succeeded on 20 May 2011 in obtaining default judgment and a trial has been held on assessment of damages. The plaintiff claims three categories of damages: cost of new truck K89,720.00, loss of income K1,206,880.00 and pain and suffering K20,000.00, a total claim of K1,316,600.00.

3. The defendant argues that nothing should be awarded as the plaintiff failed to produce evidence that he suffered any loss: there was insufficient evidence that he owned the truck and if he did own it, there is no evidence of its replacement value or business records.

THE ARGUMENT THAT NOTHING SHOULD BE AWARDED

4. It must be emphasised that this is a trial on assessment of damages following entry of default judgment. Though a judge assessing damages following entry of default judgment may revisit the question of liability, the discretion to do so must be exercised sparingly. The presumption arises on entry of default judgment that the judgment resolves all questions of liability on matters pleaded in the statement of claim. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity. If so, liability should be regarded as proven. Only if the facts or 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 (William Mel v Coleman Pakalia (2005) SC990).

5. I have made a cursory inquiry and am satisfied that the facts and cause of action alleged against the defendant are pleaded with sufficient clarity. There was a motor vehicle accident caused by the negligence of the defendant’s driver, which caused damage to another vehicle, which was the property of the plaintiff. The defendant lost the opportunity to bring evidence to counter the plaintiff’s claim that he was the owner by failing to file a defence, and by failing to have the default judgment set aside. There is a clear cause of action in negligence. There is no good reason to inquire further into the correctness of the judgment on liability. I will now assess each of the three categories of damages being claimed by the plaintiff.

1 LOSS OF TRUCK

6. The plaintiff has adduced evidence that as a result of the defendant’s driver’s negligence his truck is a write-off. Ela Motors Wewak has provided a repair quote of K77,475.51 and a quote for a new replacement truck of K89,720.00, which is the amount of damages being claimed.

7. There is a serious flaw in the plaintiff’s case here. It is not clear what the pre-accident value of the truck was. There is very little evidence to go on. The plaintiff wrongly assumes that he is entitled to the cost of a brand new truck. This approach would offend against a fundamental principle of the law of damages: the purpose of an award of damages is to put the innocent party in the same position, as far as possible, as he would have been in if the wrongdoer had not committed the wrongful act (Livingston v Raywards Coal Co [1880] 5 App Cases 25, Samuel Roth v Samuel Waironak (2011) N4452). To put the plaintiff in the same position he was in before his truck was negligently damaged, it is necessary for him to be awarded damages calculated by reference to the value of the truck at the time of the accident. There is evidence that the plaintiff purchased the truck for K45,000.00 one month before the accident. I consider a reasonable amount to award is K40,000.00.

2 LOSS OF INCOME

8. 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 reasonable to repair the asset (Abel Kopen v The State [1988-89] PNGLR 655).

9. The plaintiff claims that he could not afford to get his truck repaired and that it was unroadworthy. He claims that based on the one month period that he had the truck doing a return PMV run between Wewak and Angoram it would have generated annual revenue of K301,720.00. He has multiplied that figure by four years to arrive at the amount claimed, K1,316,600.00. His counsel, Mr Meten, acknowledges that at first glance there may be a problem in supporting...