Daniel Occungar v Luke Kiliso and Jamie Graham and New Britain Palm Oil Limited (2010) N4102

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 June 2010
• Court: National Court
• Citation: (2010) N4102
• Docket Number: WS NO 332 OF 2008
• Year: 2010
• Judgement Number: N4102

Full Title: WS NO 332 OF 2008; Daniel Occungar v Luke Kiliso and Jamie Graham and New Britain Palm Oil Limited (2010) N4102

National Court: Cannings J

Judgment Delivered: 25 June 2010

N4102

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 332 OF 2008

DANIEL OCCUNGAR

Plaintiff

V

LUKE KILISO

First Defendant

JAMIE GRAHAM

Second Defendant

NEW BRITAIN PALM OIL LIMITED

Third Defendant

Kimbe: Cannings J

2009: 18, 22 December,

2010: 25 June

JUDGMENT

NEGLIGENCE – motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the other vehicle was negligent.

DAMAGES – measure of – plaintiff claims damages for: damage to bus; business losses.

There was a motor vehicle collision between the plaintiff’s bus and a tractor owned by the third defendant and driven by the first defendant, resulting in damage to the bus. The plaintiff sued the defendants, claiming damages for negligence. The defendants denied liability on the ground that there was insufficient evidence that the first defendant drove negligently and that, in fact, the bus driver was negligent. As to assessment of damages the defendants asserted that if they were found liable, the plaintiff should be awarded nothing due to lack of evidence.

Held:

(1) The plaintiff’s evidence was sufficient to prove, on the balance of probabilities, that his version of events was correct and that the driver of the tractor was negligent.

(2) The plaintiff succeeded in establishing a cause of action in negligence against the defendants.

(3) Damages were assessed as: damage to the bus K22,500.00 + business losses K9,000.00 = K31,500.00.

(4) In addition the plaintiff was awarded interest of K7,812.00, making the total judgment sum K39,312.00.

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

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

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

Otto Benal Magiten v Bilding Tabai (2008) N3470

TRIAL

This was a trial on liability and damages.

Counsel

D Occungar, the plaintiff, in person

T Goledu, for the defendants

25 June, 2010

1. CANNINGS J: On 8 June 2007 there was a collision between:

· a New Holland tractor owned by the third defendant, New Britain Palm Oil Limited (NBPOL), the third defendant; and

· a 15-seater Toyota Hiace PMV bus owned by the plaintiff, Daniel Occungar.

2. The tractor was driven by the first defendant, Luke Kiliso, an NBPOL employee. The second defendant, Jamie Graham, was at the time the managing director of NBPOL. The bus was driven by the plaintiff’s employee, Peter Okuk. The collision occurred on a straight stretch of road between the Bebere nursery, near Mosa, and Nahavio. Both the tractor, which was pulling a trailer, and the bus, which was carrying fare-paying passengers, were travelling in the same direction, from Mosa towards Nahavio. The bus was behind the tractor and attempted to overtake it. As it drew near to the tractor, on its right side, the tractor turned right, into the path of the bus. Hence the collision. No one was physically injured.

3. The plaintiff has brought a negligence action against the defendants on the ground that the tractor driver was negligent. He claims damages of K22,500.00 for repairs to the bus and business losses of approximately K300,000.00. The defendants deny liability. They say that it was the bus driver who caused the collision. In the event that they are found liable they argue that the plaintiff should be awarded nothing as he has not proven any losses. A trial has been held on both liability and damages.

4. The issues are:

1 has the plaintiff proven that the tractor driver was negligent? and

2 are the defendants liable in negligence? and

3 if the defendants are liable – what damages is the plaintiff entitled to?

1 HAS THE PLAINT IFF PROVEN THAT THE TRACTOR DRIVER WAS NEGLIGENT?

4. Mr Goledu, for the defendants, submits that the plaintiff’s case is based on the proposition that the tractor driver was convicted of negligent driving in the Kimbe District Court but that fact has not been proven. He points out the certificate of conviction that was adduced in evidence shows only that the tractor driver was on 17 October 2007 convicted of five unspecified traffic offences under the Motor Traffic Act. It does not prove that he was convicted of negligent driving. The District Court depositions also do not show that the tractor driver was convicted of negligent driving, he submitted.

5. I uphold Mr Goledu’s submission on this point of fact: the plaintiff has not proven that the tractor driver was convicted of negligent driving. However he has proven that the tractor driver was convicted of five traffic offences, including driving an unregistered, uninsured motor vehicle, with no front or rear registration plate and no certificate of roadworthiness. He has also proven – by adducing an affidavit from the police traffic officer, Sergeant Mara Frederick, who investigated the collision – that the attitude of the Police to the incident was that the tractor driver was at fault and that he caused the collision by failing to signal and failing to look back before turning right. When that evidence is combined with the evidence of the bus driver, the bus crew, a passenger on the bus and one of the persons who was riding on the trailer being towed by the tractor, the plaintiff has presented a solid case that the tractor driver, Luke Kiliso, was negligent.

6. Mr Kiliso has given evidence that he did not cause the collision and that it was caused by the bus driver who was driving at high speed and failed to keep a proper look out. Mr Kiliso says that he did, in fact, signal that he was turning right. However, there is no other evidence to support this version of events and I reject it.

7. I find it proven, on the balance of probabilities, that the plaintiff’s version of events is correct and that the driver of the tractor was negligent.

2 ARE THE DEFENDANTS LIABLE?

8. The plaintiff has established all elements of the tort of negligence against the first defendant, the tractor driver (Otto Benal Magiten v Bilding Tabai (2008) N3470). The tractor driver owed a duty of care to other road users such as the plaintiff. He drove the tractor negligently and caused the collision, which led to the injuries (damage to the bus and business losses) which are not of a type that are too remote. The second defendant and the third defendant are vicariously liable for the negligence of their employee. The defendants have in their defence claimed that the bus driver is guilty of contributory negligence. However, there is insufficient evidence of this. Judgment on liability will be entered against all defendants.

3 WHAT DAMAGES IS THE PLAINTIFF ENTITLED TO?

9. The plaintiff is claiming:

· damages to the bus, K22,500.00;

· business losses, approximately K300,000.00; being

· total damages of approximately K322,500.00.

Damage to the bus

10. The plaintiff has adduced evidence of quotes from three motor vehicle repairers in support of the claim for K22,500.00. The evidence is that the chassis of the bus was bent and required replacement. This is evidence of extensive damage. The claim for K22,500.00 is reasonable and I assess that as the appropriate sum.

Business losses

12. 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). 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 WS 1596/2005, 26.10.07).

13. Here, there is very little evidence to support the plaintiff’s claim and I am going to have to come up with an estimate of what is reasonable. The defendants want me to award him nothing but I do not think that would be doing justice to anybody. The plaintiff has proven that his bus was registered and used as a PMV. So, even though he has presented no audited accounts or business records, the court can draw reasonable inferences from the available evidence and other similar cases.

14. I refer to my decision in a Madang case, Daniel Jifok v Kambang Holdings Ltd, trading as Lutheran Shipping (2008) N3475. 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 lost profits of K445,211.25, which I held was a grossly exaggerated claim for two reasons: the monthly profit figures were inflated and the period to repair the bus, which was said to be more than four years, was excessive. I fixed on what I reasoned was a reasonable profit figure of K3,000.00 per month and allowed three months as the period to repair the bus and awarded K9,000.00 for lost...