Philip Benjamin v Department of Works and The Independent State of Papua New Guinea (2005) N2874

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Davani J
• Judgment Date: 28 July 2005
• Citation: (2005) N2874
• Judgment Number: N2874
• Year: 2005
• Docket Number: WS 1126 of 1996

Full Title: WS 1126 of 1996; Philip Benjamin v Department of Works and The Independent State of Papua New Guinea (2005) N2874

National Court: Davani J

Judgment Delivered: 28 July 2005

N2874

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

AT LAE

WS 1126 OF 1996

PHILIP BENJAMIN

(Plaintiff)

AND:

DEPARTMENT OF WORKS

(First Defendant)

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

(Second Defendant)

LAE: Davani, J

2005: 12th & 28th July

Practice and procedure – entry of default judgment – assessment of damages – plaintiff, an individual – evidence show claim by company – claim by individual must fail.

Practice and procedure – entry of default judgment – assessment of damages – evidence confusing and contradictory – damages to be proven by credible evidence.

Cases cited:

· Obed Lalip for himself and on behalf of Marae Kulap and Francis Minabo v Fred Sikiot and The State (1996) N1457).

· Coecon Ltd v National Fisheries Authorities of PNG (2002) N2182;

· William Mel v Coleman Pakalia (2003) N247

P. Ousi for the plaintiff

G. Pipike for the second defendant

No appearance for the first defendant

DECISION

28th July, 2005

DAVANI, J: The plaintiff applies by Writ of Summons and Statement of Claim filed on 19th November, 1996 seeking various orders more particularly, damages. The plaintiff’s claim for damages arise from a motor vehicle accident where a truck he owned fell through a bridge. He claims for revenue lost during the period the truck was being repaired and repairs to the vehicle.

Default judgment was entered against the defendants on 14th April, 1997. The matter is now before me for assessment of damages.

Evidence

The plaintiff relies on the following affidavits in support of his claim. These are:

1 His three affidavits sworn on 6th October, 1997, 22nd March, 2004 and 15th April, 2004;

2 Robin S. Siwi’s affidavit sworn on 14th April, 2004;

3 The evidence of the plaintiff’s employed driver.

The defendants rely on the affidavits of Philip Anis sworn on 30th May, 2005 and filed on 5th July, 2005 and Steven Veraga, sworn on 14th July, 2005 and filed on 6th July, 2005.

Preliminary

During the trial, counsel for the defendants raised objections in relation to the tendering of certain exhibits which I either over-ruled or upheld. I discuss these evidence together with my conclusions as to their acceptance or not, at the appropriate time.

Several issues were put before the Court by defendants’ counsel which I find are issues pertinent to this case. They are:

4 Who is the proper plaintiff to claim damages?;

5 Who owns the vehicle, the subject of these proceedings?;

6 Whether the vehicle allegedly damaged, is the same vehicle that was repaired?;

7 Whether the invoices issued were genuine invoices?;

8 Whether the plaintiff paid for the parts allegedly supplied to repair the vehicle.

Brief Facts

The plaintiff’s substantive action against the Defendants is for their failure to properly maintain the bridge which resulted in the deckings becoming rotten and subsequently, the vehicle falling through.

The evidence is that the motor vehicle accident occurred on 17th August, 1995, when the vehicle driven by the plaintiff’s employed driver, fell through the deckings of the Diawa Bridge situated on the Bulolo-Aseki Road. As a result, the vehicle sustained extensive damage to its undercarriage.

The plaintiff claims that he owns this motor vehicle, a Hino six wheeler truck, Registration Number LAC 429 (the ‘vehicle’). The plaintiff claims that at the time of the accident, he owned a trade store located in Menyamya known as “Bens Trading”, which trade store suffered losses when the vehicle was off the road.

He also claims that apart from the trade store and trucking business, the vehicle also transported green bean coffee which he bought and sold in the outlying parts of the Morobe Province. The vehicle also transported supplies from Lae for his trade store.

Particulars of Damages and Loss

The plaintiff alleges that as a result of the accident, his vehicle was put in the workshop to be repaired and was not operational for three (3) months, as a result of which he suffered losses. He alleges that losses suffered were between the period 17th August, 1995 to November 1995.

The plaintiff’s pleadings in relation to damage and loss are set out in paragraph 7 of the Statement of Claim. I set these out in full, below;

“7. As a result of the matters aforementioned, the Plaintiff suffered loss of business for three (3) months, the period, the said motor vehicle was in a workshop undergoing mechanical and body repair.

PARTICULARS OF DAMAGES

ix Heavy duty springs – broken and completely smashed.

x Rear transmission box – completely damaged.

xi Rear excel – completely broken.

xii Broken shaft.

PARTICULARS OF EXPENSES INCURRED TO RESTORE TRUCK TO OPERATIONAL CAPACITY

The Plaintiff incurred the following expenses in restoring his Hino HHKA, Registration No. LAC-429 to operational capacity:-

Ela Motors

Date Invoice No. Amount

18/08/95 36384 K 523.90

28/08/95 38772 584.04

16/11/95 42495 1,094.66

18/11/95 38867 11,310.00

K13,512.60

PNG Spring Smith

Date Invoice No. Amount

29/09/05 82 K 430.00

Bens Trading

Date Payment Voucher Amount

17/08/95 44 K 320.50

17/08/95 45 360.00

17/08/95 84 183.15

28/08/95 46 430.00

30/08/95 85 350.00

31/08/95 47 1,050.00

31/08/95 48 930.00

K3,943.65

Air Niugini

Date Ticket No. Amount

04/10/95 K 196.50

“ C.1381061 62.44

Miscellaneous 10,855.31

Sub-total K11,114.25

GRAND TOTAL: K29,000.50

PARTICULARS OF LOSS OF BUSINESS/REVENUE

M Loss of profits as a direct result of transport accident due to State negligence to maintain the bridge on Kapau River.

Back Load

1 Sales

(13)2( Trade Goods

Average Daily Sales = K3,000.00

Business Working Days = 6 days

Loss Sales Turn over/week

= K5,000.00 x 6 days = K18,000.00/week

(13)3( Coffee

Average Parchment Coffee per trip = 5,500kg

Trip in a week = 3 trips

Percentage turnout as Green Bean = 74%

Contract Price on Green Bean = K3.15

Loss on sales over on green beans per week

5,500kg x 3 trips x 74% turnout x 3.16

Contract price = K38,461.50 per week

N Freight

(14)1( Trade Goods

Average tonnage per trip = 5,500kg

Freight charge = .10t per kg

Number of trips per week = 3 trips per week

Loss on transport turnover 5,500kg x .10t x 3 trips

= K1,650.00 per week

(14)2( Coffee

Average tonnage per week = 5,500kg

Freight charge = .10t per kg

Number of trips per week = 3 trips

*Loss incurred on transport 5,500 kg x .10t x 3 trips = K1,650.00 per week

*Purchasing power per week

Number of trips per week = 3 trips

Average purchase per trip = K8,000.00 per trip

Mark on purchase trip per week = 22%

Estimated loss = K29,280.00 per week

Total estimated loss incurred by business as a result of the accident.

(14)3( 18,000.00

(14)4( 38,461.50

(14)5( 1,650.00

(14)6( 1,650.00

K59,761.50 per week

Duration of six (6) weeks (17/08/95-01/10/95)

K59,761.50 x 6 weeks = K358,569.00

Less expenses incurred per week = K15,000.00

Expenses incurred per week

1. Accommodation = K 300.00

2. Fuel Hino = 250.00

3. Driver’s wages = 150.00

4. Offsider’s wages = 70.00

5. Traveling Allowance = 80.00

6. Medical Expenses = 20.00

7. Food = 52.50

8. AGC Finance =...