Micky Akai v John Stanley Reeves and Michael Newall Wilson trading as Warner Shand Lawyers (2019) N1885

• Jurisdiction: Papua New Guinea
• Judge: Dingake J
• Judgment Date: 09 December 2019
• Court: National Court
• Citation: (2019) N1885
• Docket Number: WS No 526 of 2001
• Year: 2019
• Judgement Number: N8185

Full Title: WS No 526 of 2001; Micky Akai v John Stanley Reeves and Michael Newall Wilson trading as Warner Shand Lawyers (2019) N1885

National Court: Dingake J

Judgment Delivered: 9 December 2019

N8185

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO.526 OF 2001

BETWEEN:

MICKY AKAI

Plaintiff

AND:

JOHN STANLEY REEVES

First Defendant

AND:

MICHAEL NEWALL WILSON

trading as WARNER SHAND LAWYERS

Second Defendant

Waigani: Dingake J

2019: 22nd November

6th & 9th December

DAMAGES – assessment of damages on a claim on professional negligence - claim against a lawyer and the law firm who failed to prosecute plaintiff’s claim against Insurer timeously, leading to the matter being dismissed, and the plaintiff unable to recover the amount lost in insuring house - house destroyed by fire - failure of the defendants to prosecute the plaintiff’s claim timeously leading to dismissal of his claim, protracted litigation that ensued for decades - plaintiff suffering frustration, inconvenience, anxiety, stress, pain and suffering of which he is entitled to be compensated –judgment granted in favour of plaintiff by awarding general damages, cost of house and interest – costs follow event

Cases Cited:

Andale More & Manis Andale v Henry Tokam & The State (1997) N1645

Albert Areng v Gregory Babia & National Housing Corporation (2008) N3469

Kevin Patai v Niugini Lumber Merchants Pty Ltd & Ors (1997) N1602

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

Lucas Diritala v Joe Jeffrey (2009) N3927

Magiten v Tabai (2010) N3916

Obed Lalip for himself and on behalf of Marae Kulap and Anor v Fred Sikiot and The State (1996) N1457

Paschal Feria v Ben Lange & The State (2009) N3574

Rodao Holdings Ltd v Sogeram Development Corporation Limited (2007) N5485

Rimbunan Hijau (PNG) Ltd v Ine Ibi & Others (2017) SC 1605

The State v Hodson [1987] PNGLR 241

Counsel:

Mr. Wesley Donald, for the Plaintiff

Mr. Robert Asa, for the Defendants

10th February, 2020

1. DINGAKE J: This is a judgment on assessment of damages on a claim by the plaintiff against the defendants, for professional negligence.

2. The question of liability was settled on or about September, 2014, in proceedings titled SCA No. 108 of 2010. Thereafter, attempts by the parties to settle has not been successful.

3. This claim is against a lawyer and the Law Firm (the defendants) who failed to prosecute the plaintiff’s claim against the Insurer timeously, leading to the matter being dismissed, and the plaintiff unable to recover the amount of K68,378.00,being the policy cover for the house and its contents against the Insurer, in proceedings WS No. 32 of 1989.

4. It is a matter of grave concern to this Court that a matter first filed in 1989 in this Court still lingers on in the system and remains unresolved to date, and the potential prejudice to the parties, is simply astounding.

5. The material background facts to this matter turn on a narrow compass. Sometime in 1988 the plaintiff’s house, which he had insured with South Pacific Insurance Company (PNG) Limited, for K68,378.00 was destroyed by fire.

6. The Insurance Company repudiated liability, and the plaintiff instituted proceedings against it in WS No. 32 of 1989, which was eventually dismissed for want of prosecution and which precipitated this current litigation.

7. The house that was destroyed was situated at Pilapila Village, North Coast, Rabaul, East New Britain Province.

8. It is trite learning that judgment on liability resolves all questions of liability in respect of the matters pleaded in the Statement of Claim, and that the plaintiff is only entitled to lead evidence and recover such damages, as pleaded, as he may be able to prove. (Andale More & Manis Andale v Henry Tokam & The State (1997) N1645; The State v Hodson [1987] PNGLR 241; Kevin Patai v Niugini Lumber Merchants Pty Ltd & Ors (1997) N1602; Komaip Trading v George Waugulo and The State [1995] PNGLR 165 and Obed Lalip for himself and on behalf of Marae Kulap and Anor v Fred Sikiot and The State (1996) N1457).

9. By Writ of Summons with a Statement of Claim endorsed thereto, the plaintiff claimed the following:

(1) Damages.

(2) The sum of K68,378.00 being the sum claimed in the proceedings titled WS No. 32 of 1989 between himself and Southern Pacific Insurance Company (PNG) Ltd.

(3) Special damages.

(4) Interest pursuant to Statute.

(5) Costs of the proceedings.

(6) Such further orders deemed fit by the Court.

10. At the trial the plaintiff relied on the following affidavit evidence:

i) Affidavit by Mickey Akai sworn on 22nd of May, 2018 and filed on the 2nd of July, 2018;

ii) Affidavit of Mickey Akai sworn on the 31st of August, 2018 and filed on the 3rd of September, 2018;

iii) Affidavit of Dennis Kivung sworn on 10th of June, 2019 and filed on the 5th of July, 2019;

11. Both the plaintiff and Mr. Dennis Kivung were cross examined at the trial. The plaintiff’s evidence was credible and unshaken. I find him to be a truthful witness.

12. The defendants did not file any affidavit evidence nor call witnesses, in opposition.

13. I have considered with extreme care the evidence relied upon by the plaintiff in support of his claim. The valuation report commissioned in 2008 by the plaintiff, by a private valuer, Moody Real Estate Ltd, places the value of the destroyed house, then (2008), at K411,458.59. This evidence has not been challenged by the defendants. The defendants have not objected to its admission or challenged it in anyway in their final submissions. It follows in my view that it stands to be accepted as truthful, which I hereby do. It is also instructive that the defendants led no evidence to rebut the evidence of the plaintiff. (Rimbunan Hijau (PNG) Ltd v Ina Enei& Others (2017) SC 1605).

14. The affidavit of Dennis Kivung, sworn on the 10th of June, 2019, and filed on the 5th of July, 2019 puts the value of the new house similar to the one that was destroyed at K49,885.04.

15. The plaintiff was unable to provide the Insurance documents as evidence because same was destroyed by fire.

16. On the evidence, I accept as probable, that the insurance cover of K68,378.00 was intended to put the plaintiff in the same position as he was before the house was destroyed in 1988. I similarly accept the evidence of the private valuer, Moody Real Estate Ltd, that puts the value of the house at K411,458.59 in 2008, as the probable replacement value.

17. I have also considered the evidence of Dennis Kivung referred to earlier. At the trial his capacity to come up with replacement costs at current prices was discredited. As it turned out, he was not a qualified Architect or building planner and seems to have relied on prices obtained at Port Moresby not where the destroyed house is located. For the above reasons, it is unsafe to rely on his evidence. The mere ownership of a construction company, as Mr. Kivung does, without more, does not give Mr. Kivung the knowledge or skill to do a bill of quantities which is a specialized skill.

18. The net result is that I find, that in all the circumstances of this case, having regard to the evidence and the justice of this matter, the replacement value of the house as at 2008 was K411,458.00. It is probable that the replacement value may have gone up since then and as to what the current (at the time of the trial in 2019) replacement value may be, this court has no evidence of the possible replacement value, and I would not engage in guess work.

19. I notice in the relief sought that the plaintiff claims “Damages” and later on “Special Damages”. Read contextually, “Damages” under para 10.1 of the Statement of Claim, must clearly be a reference to general damages. The defendants sought to suggest that since the plaintiff did not qualify the first damages, then, no general damages are being sought. I do not accept this argument by the defendants.

20. On the evidence tendered, I am satisfied that the failure of the defendants to prosecute the plaintiff’s claim timeously leading to the dismissal of his claim, the protracted litigation that ensued for decades, did cause the plaintiff frustration, inconvenience, anxiety, stress, pain and suffering of which he is entitled to be compensated. It would, in my mind, be unjust and unconscionable to leave him without a remedy.

21. The plaintiff claims general damages of between K500,000.00 or K5 Million, according to his lawyer’s submission. In their submissions filed on the 9th of December, 2019, the defendants, correctly in my view, concede and say that, “we do accept that the plaintiff suffered some form of distress, pain and suffering”.

22. I have read, with profit, a number of cases that provide useful guidelines on how to approach the issue of general damages in similar cases to the present. These cases include:

(1) ...