Charles Klakal Bafor v Samuel Kilane (2013) N5444

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 13 December 2013
• Citation: (2013) N5444
• Docket Number: WS NO 503 OF 2008
• Court: National Court
• Year: 2013
• Judgement Number: N5444

Full Title: WS NO 503 OF 2008; Charles Klakal Bafor v Samuel Kilane (2013) N5444

National Court: Cannings J

Judgment Delivered: 13 December 2013

N5444

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 503 OF 2008

CHARLES KLAKAL BAFOR

Plaintiff

V

SAMUEL KILANE

Defendant

Madang: Cannings J

2013: 25 October, 6, 13 December

DAMAGES – negligence – assessment of damages after trial on liability – motor vehicle accident – damages claimed for vehicle repairs, special damages, business losses and pain and suffering.

The plaintiff at an earlier trial established a cause of action in negligence against the defendant arising from a collision between a vehicle owned by the plaintiff and a vehicle driven by the defendant. At a trial on assessment of damages the plaintiff claimed three heads of damage: (1) cost of repairs, K36,766.82; (2) loss of income, K240,000.00; and (3) special damages, K5,000.00; a total claim of K281,766.82.

Held:

(1) Damages assessed were: value of the vehicle before it was damaged, K21,000.00; loss of business, K16,000.00; special damages, 0; a total award of K37,000.00.

(2) In addition, interest was awarded at the rate of 8% per annum on the total amount of damages for the period between the date on which the cause of action accrued to the date of judgment, the amount of interest being K31,524.00, making a total judgment sum of K68,524.00.

Cases cited

The following cases are cited in the judgment:

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

Daniel Jifok v Kambang Holdings Ltd (2008) N3475

Daniel Occungar v Luke Kiliso (2010) N4102

Desmond Guasilu v Enga Provincial Government (2012) N4774

Graham Mappa v ELCOM (1992) N1093

Jonathan Mangope Paraia v The State (1995) N1343

Misac Pokonoming v Jeffery Simiri (2007) N4978

Samuel Roth v Samuel Waironak (2011) N4452

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for negligence.

Counsel

D F Wa’au, for the plaintiff

B Tabai, for the defendant

13th December, 2013

1. CANNINGS J: This is an assessment of damages for negligence. The plaintiff Charles Klakal Bafor succeeded at an earlier trial in establishing liability against the defendant Samuel Kilane, arising from a collision between a Toyota Hiace PMV bus owned by the plaintiff and another Toyota Hiace bus owned by the defendant. The collision occurred on 19 April 2003 at Boko Bridge on the Bruce Jephcott Highway.

2. Mr Wa’au for the plaintiff originally submitted that the plaintiff should be awarded three heads of damage: (1) total cost of damages caused to the PMV bus, K39,766.82 minus K3,000.00 paid already by the defendant = K36,766.82; (2) loss of business, K240,000.00; (3) special damages, K5,000.00; plus costs, K10,050.00; a total claim of K291,816.82. When I pointed out that the amount of the loss of business claim seemed to be exaggerated and had little prospect of success, Mr Wa’au withdrew that part of his submission and left it to the discretion of the court to fix a more moderate sum.

1 REPAIRS

3. The plaintiff has adduced evidence of quotes from two motor vehicle repairers, the amounts being K21,000.00 as the value of the vehicle before it was written-off due to the accident and K39,766.82 being the total repair cost quoted by Ela Motors. As the vehicle was a write-off, I will, as I did in Samuel Roth v Samuel Waironak (2011) N4452, award the amount quoted as the value of the vehicle before it was involved in the accident: K21,000.00.

2 BUSINESS LOSSES

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 (Abel Kopen v The State [1988-89] PNGLR 655). Ideally the plaintiff should provide an audited set of accounts to verify his claim. However, if that evidence is not forthcoming, it does not follow, necessarily, that the plaintiff will be awarded nothing. The court will do the best it can on the evidence that is available (Graham Mappa v ELCOM (1992) N1093, Jonathan Mangope Paraia v The State (1995) N1343, Misac Pokonoming v Jeffery Simiri (2007) N4978, Desmond Guasilu v Enga Provincial Government (2012) N4774).

5. There were two serious problems with the original claim of K240,000.00. First, there is no set of accounts, audited or unaudited, to verify the figures. Secondly, the period to repair the vehicle was excessive. Any prudent PMV operator will ensure that their vehicle is covered by comprehensive motor vehicle insurance, which will significantly reduce the risk of it being off the road for a long period if it is involved in an accident. I will assess lost profits at a nominal figure of K4,000.00 per month taking into consideration that the PMV operated the Madang to Lae route. As for a reasonable period to effect repairs or organise a replacement vehicle I have looked at what Woods J allowed in the Kopen and Mappa cases (three weeks and 13 weeks respectively) and what I have allowed in similar cases, Daniel Jifok v Kambang Holdings Ltd (2008) N3475, Daniel Occungar v Luke Kiliso (2010) N4102 and Desmond Guasilu v Enga Provincial Government (2012) N4774 (three months in each), and compared the facts of this case with the facts in those cases. I will allow a period of four months. The amount of business losses is K4,000.00 per month x 4 months = K16,000.00.

3 SPECIAL DAMAGES

6. This is a nebulous claim, unsupported by particulars or any credible evidence. Nothing is awarded.

SUMMARY OF DAMAGES ASSESSED

Cost of repairs: K21,000.00

Loss of income: K16,000.00

Special damages: 0

Gross = K37,000.00.

INTEREST

7. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 19 April 2003, to the date of this judgment, a period of 10.65 years, by applying the formula D x I x N = A, where:

· D is the amount of...