Otto Benal Magiten v Bilding Tabai and Lawrence Acanufa trading as Acanufa & Associates Lawyers (2010) N3916

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 19 February 2010
• Citation: (2010) N3916
• Docket Number: WS NO 1452 OF 2004
• Year: 2010

Full Title: WS NO 1452 OF 2004; Otto Benal Magiten v Bilding Tabai and Lawrence Acanufa trading as Acanufa & Associates Lawyers (2010) N3916

National Court: Cannings J

Judgment Delivered: 19 February 2010

JUDGMENT

DAMAGES—assessment of damages—professional negligence of lawyers—dismissal of earlier proceedings due to lawyer’s negligent failure to be aware of statutory limitation periods

The plaintiff succeeded in establishing a cause of action in negligence against his former lawyers, which had resulted in the plaintiff failing in a breach of contract action against a third party. This was a trial on assessment of damages against the lawyers.

Held:

(1) If a client’s case is dismissed due to the negligence of their lawyer, than in assessing damages against the lawyer it is appropriate to presume, after a cursory inquiry to establish that the plaintiff had a reasonable prospect of success in the earlier case, to assess the damages that would have been awarded in that earlier case (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364 applied).

(2) The client may also be awarded general damages for distress, inconvenience and frustration caused by a lawyer’s negligence.

(3) The plaintiff was awarded K42,147.00 for business losses (representing the damages that he would have been awarded had he won the earlier proceedings) and general damages of K30,000.00, a total of K72,147.00; plus interest and costs.

Cases cited

The following cases are cited in the judgment:

Albert Areng v Gregory Babia (2008) N3469; Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24; Joses Taru v New Ireland Shipping Ltd (2008) N3501; Lucas Diritala v Joe Jeffrey WS No 44 of 2004, 01.10.09; Martha Limitopa v The State [1988–89] PNGLR 364; Otto Benal Magiten v Bilding Tabai (2008) N3470; Paschal W Feria v Ben Lange (2009) N3574; PNGBC v Jeff Tole (2002) SC694; Rodao Holdings Ltd v Sogeram Development Corporation WS 521 of 2001, 23.02.07; Rooney v Forest Industries Council [1990] PNGLR 407; Stephen Asivo v Bank of South Pacific Ltd (2009) N3754; Tutunkoff v Thiele (1975) 11 SASR 148

TRIAL

This was a trial on assessment of damages for negligence.

19 February, 2010

1. CANNINGS J: The plaintiff, Otto Benal Magiten, succeeded in 2008 in establishing a cause of action in negligence against his former lawyers, Bilding Tabai and Lawrence Acanufa. The lawyers were negligent in that they failed to take account of the six-year limitation period in a breach of contract case that the plaintiff—their client—had in 2001 commenced against Ela Motors, Madang. As a result of their negligence the plaintiff’s case against Ela Motors, Madang was dismissed (Otto Benal Magiten v Bilding Tabai and Lawrence Acanufa trading as Acanufa & Associates Lawyers (2008) N3470).

2. The case against the lawyers is now ready for assessment of damages. The plaintiff is claiming two heads of damages: loss of business and general damages.

LOSS OF BUSINESS

3. By ‘loss of business’ the plaintiff is referring to the damages for loss of business he would have been awarded if his case against Ela Motors, Madang had succeeded. The plaintiffs’ counsel, Mr Meten, submitted that it should be presumed that the case against Ela Motors, Madang would have been successful, so the court’s task is now to consider the evidence in that case and assess the damages that would have been awarded in it. In support of that proposition Mr Meten relied on the judgment...