Daniel Jifok v Kambang Holdings Limited, trading as Lutheran Shipping (2008) N3475

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 September 2008
• Court: National Court
• Citation: (2008) N3475
• Docket Number: WS NO 1736 OF 2005
• Year: 2008
• Judgement Number: N3475

Full Title: WS NO 1736 OF 2005; Daniel Jifok v Kambang Holdings Limited, trading as Lutheran Shipping (2008) N3475

National Court: Cannings J

Judgment Delivered: 10 September 2008

N3475

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1736 OF 2005

DANIEL JIFOK

Plaintiff

V

KAMBANG HOLDINGS LIMITED

TRADING AS LUTHERAN SHIPPING

Defendant

Madang: Cannings J

2008: 21 February,

12 May, 10 September

JUDGMENT

NEGLIGENCE – assessment of damages – motor vehicle incident – defendant’s forklift negligently collided with plaintiff’s PMV bus – plaintiff claims damages for: damage to bus; business losses; general damages.

The defendant’s forklift negligently collided with the plaintiff’s PMV bus. Liability was established and a trial was held on assessment of damages. The plaintiff claimed for three heads of damage: damage to the bus; business losses; and general damages.

Held:

(1) There was insufficient evidence to support the claim that the bus was written off as a result of the incident. Damage to the bus was estimated at K10,000.00.

(2) The claim for business losses was grossly exaggerated. The amount assessed was K9,000.00.

(3) General damages was assessed at K5,000.00.

(4) The total amount of damages awarded was K10,000.00 + K9,000.00 + K5,000.00 = K24,000.00.

(5) In addition, interest of K5,376.00 is payable, making the total judgment sum to be K29,376.00.

Cases cited

The following cases are cited in the judgment:

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

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Graham Mappa v ELCOM (1992) N1093

Jonathan Mangope Paraia v The State (1995) N1343

Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07

Rodao Holdings Ltd v Sogeram Development Corporation WS 521/2001

TRIAL

This is a trial on assessment of damages.

Counsel

B Meten, for the plaintiff

Y Wadau, for the defendant

10 September, 2008

1. CANNINGS J: This case arises out of a collision between a forklift and a PMV. It occurred on Modilon Road, Madang, in January 2002. The forklift, owned by the defendant, Lutheran Shipping, bumped into the back of the PMV, which was stationary, having stopped to drop off a passenger. No one was injured but the PMV, a Nissan Urvan bus, owned by the plaintiff, Daniel Jifok, came off second-best. The rear bumper bar and a number of body panels were damaged. Not only that, the plaintiff claims that the engine and gearbox seized as a result of the collision. He is claiming damages for:

· the cost of a new bus, K59,800.00; and

· business losses, K445,211.25; and

· general damages, K50,000.00; being

· a total damages claim of K555,011.25, plus interest.

2. Liability was established through entry of default judgment and a trial has been held to assess damages.

IS THE PLAINTIFF ENTITLED TO A NEW BUS?

3. The plaintiff is claiming that as a result of the collision with the forklift, the engine and gearbox in his bus seized up and were damaged beyond repair. It would cost more to replace the engine and gearbox than buying a new bus. His lawyer, Mr Meten, submits that the plaintiff is entitled to damages that would enable him to purchase a new bus, estimated to cost K59,800.00.

4. This is a spurious claim for two reasons. First, it is difficult to believe that a collision with the rear end of a bus would cause its engine and gearbox to seize. It was not a high-speed collision. Secondly, the evidence is deficient. The plaintiff says that he drove the vehicle to his house after the collision and then had two mechanics strip the motor and they advised him that it was beyond repair. The mechanics have each sworn affidavits. However, as Mr Wadau, for the defendant pointed out, neither has given his qualifications and neither can be regarded as independent and their evidence is unreliable.

5. As for corroboration of the claim, there is none. There is no police report of the incident. There is no insurance claim, report or assessment. There is no evidence by any person who witnessed the incident. Not even the driver of the plaintiff’s bus or the forklift driver have given evidence. There are no photographs of the damage to the bus.

6. It is difficult to know the exact extent of the damage. This task has not been aided by the defendant’s decision not to call any evidence. I accept that the bus was damaged, however, as that has been conceded by the defendant. In the circumstances I will assess damage to the bus at K10,000.00.

IS THE PLAINTIFF ENTITLED TO DAMAGES FOR BUSINESS LOSSES?

7. If a defendant negligently 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, National Court, Woods J). 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, National Court, Injia J; Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07, Cannings J).

8. Mr Meten submits that at the time of the incident, the plaintiff:

· was grossing K7,560.00 per month from his bus;

· had monthly expenditure of K2,761.00; and

· earned a net profit of K4,818.00 per month.

9. He submits that, because the defendant did not replace the bus, as it should have, the period for which the plaintiff should be compensated is from the date of the incident (January 2002) to the date of the default judgment (August 2006), which is four years, seven months. The total loss of net profit is K593,615.00. Mr Meten concedes that a 25 per cent contingency should be applied to that figure, resulting in a claim for lost profits of K445,211.25.

10. There are three problems with this claim.

11. First, there is no set of accounts, audited or unaudited, to verify the figures. In fact there is no evidence at all to support the figures.

12. Secondly, Mr Meten’s figures do not add up:

· K7,560.00 minus K2,761.00 is K4,799.00; not K4,818.00.

· K4,818.00 x 55 months is K264,990.00; not K593,615.00.

(However, 25% of K593,615.00 is K148,403.75 and K593,615.00 minus K148,403.75 is K445,211.25.)

13. Thirdly, the period of four years, seven months to repair the bus is not reasonable. I have already rejected the evidence that the engine and gearbox were damaged beyond repair. The only thing the plaintiff has proven is that the bus’s rear section (bumper and panels) were damaged. It does not take four years to repair such damage.

So, what should I allow?

14. Mr Wadau submits that the plaintiff has not even proven that he owns the bus as no registration or insurance documents have been adduced in evidence. This is a fair point but the plaintiff has given sworn evidence that he is the owner of the bus and that he was using it as a PMV and the defendant has brought no evidence to counter those propositions, so I will accept them at face value. I will assess lost profits at K3,000.00 per month. That is a big reduction from the amount claimed but the plaintiff has simply not proven his figures. He presented a spreadsheet prepared by officers of the National Development Bank showing how the figures add up (there appear to have been some transcription errors when these figures were put into Mr Meten’s submission). But all that proves is that someone can prepare a spreadsheet. It says nothing about the integrity of the raw data.

15. As for a reasonable period to effect repairs, I have looked at what Woods J allowed in the Kopen and Mappa cases (3 weeks and 13 weeks respectively) and compared the facts of this case with the facts in those cases. I will allow a period of three months.

16. The amount of lost profits I award is therefore K3,000.00 per month x 3 months = K9,000.00.

IS THE PLAINTIFF ENTITLED TO GENERAL DAMAGES?

17. Mr Meten submits that K50,000.00 should be awarded to compensate the plaintiff for the pain, suffering and frustration caused as a result of the collision and the defendant’s failure to settle the case. In support of this claim he refers to my decision in a recent Madang case, Rodao Holdings Ltd v Sogeram Development Corporation WS 521/2001, in which I awarded the plaintiff K50,000.00 damages for distress, inconvenience and frustration. However, the facts of that case are very different to this case. In Rodao, the cause of action was breach of contract, the parties were engaged in a business transaction, the overall amount of the claim was several million kina and the case was more complex than this case.

18. Nevertheless, I agree that some award for general damages should be made. It is a head of damage claimed in the statement of claim. I will award K5,000.00.

SUMMARY OF DAMAGES AWARDED

19. I make no deduction from the amounts assessed on account of contributory negligence or failure to mitigate losses. Lutheran Shipping has not filed a defence so neither of these issues has been raised. The amounts awarded are those assessed:

Damage to bus = K10,000.00

Business losses = K9,000.00

General damages = K 5,000.00

Total damages = K24,000.00.

INTEREST

20. In the statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

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