Junior Fabian Ningal By His Next Friend Marie Louise Terwiel Ningal v Domi Lucas and Wanpis David Temen (2012) N4887

• Jurisdiction: Papua New Guinea
• Judge: Ipang AJ
• Judgment Date: 29 October 2012
• Docket Number: WS NO. 257 OF 2009
• Court: National Court
• Judgement Number: N4887

Full Title: WS NO. 257 OF 2009; Junior Fabian Ningal By His Next Friend Marie Louise Terwiel Ningal v Domi Lucas and Wanpis David Temen (2012) N4887

National Court: Ipang AJ

Judgment Delivered: 29 October 2012

N4887

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 257 OF 2009

JUNIOR FABIAN NINGAL BY HIS NEXT FRIEND

MARIE LOUISE TERWIEL NINGAL

Plaintiff

V

DOMI LUCAS

First Defendant

AND

WANPIS DAVID TEMEN

Second Defendant

Goroka: Ipang AJ

2012: 12 & 29 October

14 November

DAMAGES – Estimating loss of profit or business income requires replaying history – what actually happened – It involves reconstructing pre, during and post – interruption history – Getting business records – Balance sheets, income statements, cash flow statements, cost histories and breakdowns – Identifying period of disruption – closed, open (disruption or its effects are ongoing) or infinite (company went out of business) – what would have happened – Absent the disruption.

DAMAGES – Defendants without permission, authority and consent took plaintiff’s truck and had possession of it for 77 days – Damages to trespass and loss of business claimed.

Cases Cited

Michael Sasaka v Thomas Dal Mini & Ors, WS No. 1370 of 2007 (30 October, 2012) unreported

Graham Mappa v PNG Electricity Commission

Abel Kopen v State [1988-89] PNGLR 659

Komaip Trading v George Waugulo & The State [1995] PNGLR 165

William Pattits for and On behalf of Sasaova Business Group v The State N3088 (26 September, 2006)

Tusia Komasa v Edger Jossy & Or WS No. 948 of 2006 (12 October, 2012) Unreported

Coecon Ltd v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February, 2002)

Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694

National Provident Fund Board of Trustees v Jimmy Maladina & Ors (2003) N2486

Motor Vehicles Insurance (PNG) Trust Ltd v James Pupune [1993] PNGLR 370

Motor Vehicles Insurance (PNG) Trust Ltd v John Etape [1994] PNGLR 596

Counsel

Mr. L. Terwiel Ningal (Next Friend of Fabian Ningal), in Person

No Appearance of Defendants

JUDGMENT

14 November, 2012

1. IPANG AJ: This is the trial on assessment of damages for trespass and damage caused to the plaintiff’s truck a Hyundai HD 65 Registration No. P431 W. Default judgment was ordered on the 10 June, 2011 and entered on the 24 June, 2011.

BRIEF FACTS

2. On or between 16 August, 2008 and 19 December, 2008 a period of 77 days, the Defendants unlawfully and without consent, authority and approval either expressed or implied by neither the plaintiff nor the New Friend had possession of the truck.

3. Defendants took the truck away from the Plaintiff’s approved operational routes in and around Eastern Highlands Province to Chimbu Province. Thereafter, the Plaintiff claimed Defendants used the truck. Plaintiff said the truck was in the Defendant’s possession for 77 days and was returned to the Plaintiff on the 20 December, 2008.

4. On the 20 December, 2008 after the truck was returned to the Plaintiff, it was discovered the vehicle suffered several damage to it’s parts; the two (2) front springs assembly; shaft centre bearings, universal joint, shock absorbers and stainless welding rods.

CHRONOLOGICAL ORDER OF EVENTS

5. On the 11 March, 2009, the plaintiff filed a Writ of Summons endorsed with a Statement of Claim. The Writ of Summons was on the 14 April, 2009 served on the First Defendant and on the 19 July, 2010 the Second Defendant was served. There was no Notice of Intention to Defend and Defence filed. On the 18 March, 2011 the plaintiff filed a Notice of motion with supporting Affidavit of Marie Terwiel Ningal sworn and filed on the 18 March, 2011. On the 10 June, 2011 Default Judgment was ordered in favour of the plaintiff.

ASSESSMENT OF DAMAGES

6. In the Writ of Summons filed, the Plaintiff claimed for the following:

(i) Damages for Trespass

(ii) Special Damages

(a) Loss of business income for 77 days - K11, 550.00

(b) Costs of damage done to the vehicle within 77 days - K 4, 888.40

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TOTAL - K15, 888.40

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(iii) The 8% interests pursuant to Statute

(iv) Costs of this proceedings

7. In respect of assessment of damages, plaintiff relied on the Affidavit of Marie Terwiel Ningal sworn and filed on the 15 July, 2011 and the submission filed on the 05 October, 2012. I will refer substantially to these two (2) documents for the purpose of assessment. As it can be appreciated, Defendants have taken no interest in this proceeding and have not filed their Notice of Intention to Defend, their defence even when there was evidence of due service.

8. In the present case liability has been established by default on the 10 June, 2011 but the plaintiff is still under obligation to prove his damages on the balance of probabilities. If the plaintiff overcomes this hurdle, he is entitled to be awarded his damages. See Coecon Ltd v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February, 2002), Kinsim Business Group Inc. v Joseph Hompwafi & State N1634 (18 September, 1997).

GENERAL DAMAGES FOR TRESSPASS

9. The first head of damages claimed was for general damages for trespass. In the Affidavit of Marie Ningal filed on the 15 July, 2011 she deposed that she would after trial on assessment of damages, filed a separate submission. Refer to paragraph 18 of her Affidavit. Marie Ningal a lay person, a non lawyer does not really understand and appreciate the court process that it is of no use filing a separate submission on general damages for tort of trespass after completion on trial on assessment of damages.

10. On the 5 October, 2012 that is after one (1) year, 3 months Marie. L. Ningal filed her submission she said she has decided not to pursue general damages for tort of trespass. She claimed Defendants are villagers and do not have a reliable source of income. Based on this, the general damages for tort of trespass will not be assessed.

11. The claim for general damages for tort of trespass is the main or the principal claim in this proceeding and other damages claimed are consequential in nature. It is more like you chopping off the main trunk of a tree and all the branches will fall down with the trunk. I cannot imagine branches of a tree standing without the tree trunk. But you chop a branch of a tree, the tree itself will still remain standing. So this logic basically applies here. Other heads of damages like special damages for loss of business, out of pocket expenses are claimed as a result of tort of trespass committed. So, by withdrawing the principal head of damages claimed (the main cause of action) would also have a flow on effect on all the consequential damages. However, as I have alluded to earlier of the plaintiff been a non lawyer I will apply fairness and equity here by going further to assess the consequential damages of special damages for loss of income and out of pocket expenses.

SPECIAL DAMAGES FOR LOSS OF PROFITS OR BUSINESS INCOME

12. In Michael Sasaka v Thomas Dal Mini & Or WS. No. 1370 of 2007 (30 October, 2012) unreported, I stated the following as the general yardstick for measuring or calculating loss of profits. I stated that estimating loss of profit would require replaying the history of what actually happened. To do this will require reconstructing the Pre, During and Post-Interruption History coupled with getting the business records, Balance Sheets, Income Statements, Cash Flow Statements, Costs histories and Breakdowns, Identifying the period of disruption that different stages – closed, Open (disrupting or its effect are ongoing) or, infinite (company went out of business).

13. In paragraph 16 (a) of the Affidavit of Marie Ningal she deposed that the PMV would have made within the 77 days which was the period of disruption the amount of K11, 550.00 at the rate of K150.00 per day. This disruption period runs from 16 August, 2008 to 19 December, 2008. The question to ask is 77 days reasonable period? See Abel Kopen v State [1988-89) PNGLR 659. Did...