Rachel Kui v Philip Sapau

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 September 2015
• Citation: (2015) N6075
• Court: National Court
• Year: 2015
• Judgement Number: N6075

Full : WS NO 766 OF 2013; Rachel Kui v Philip Sapau (2015) N6075

National Court: Cannings J

Judgment Delivered: 25 September 2015

N6075

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 766 OF 2013

RACHEL KUI

Plaintiff

V

PHILIP SAPAU

Defendant

Madang: Cannings J

2015: 16 March, 22 April, 25 September

DAMAGES – negligence – assessment of damages after default judgment – motor vehicle accident – damages claimed for repair costs, special damages, business losses, general damages for pain and suffering.

The plaintiff obtained default judgment and thereby established a cause of action in negligence against the defendant arising from a collision between a vehicle owned by the plaintiff and a vehicle driven by an employee of the defendant. At a trial on assessment of damages the plaintiff claimed four heads of damage: (1) cost of repairs, K36,143.40, (2) special damages, K800.00, (3) loss of business, K244,800.00 and (4) general damages for pain and suffering, K10,000.00; a total claim of K291,743.40, plus interest.

Held:

(1) Damages assessed were: repair costs, K36, 143.40; loss of business, K9, 000.00; general damages for pain and suffering K2, 000.00: a total award of K47, 143.40.

(2) In addition, interest was awarded at the rate of 8% per annum on the total amount of damages for the period between the date on which the cause of action accrued to the date of judgment, the amount of interest being K13, 954.45, making a total judgment sum of K61, 097.85.

Cases cited

The following cases are cited in the judgment:

Abel Kopen v The State [1988-89] PNGLR 655

Charles Klakal Bafor v Samuel Kilane (2013) N5444

Daniel Jifok v Kambang Holdings Ltd (2008) N3475

Daniel Occungar v Luke Kiliso (2010) N4102

Desmond Guasilu v Enga Provincial Government (2012) N4774

Golobadana No 35 Ltd v BSP Ltd (2013) N5340

Graham Mappa v ELCOM (1992) N1093

John Nuguwas v Peter Kopi (2014) N5504)

Jonathan Mangope Paraia v The State (1995) N1343

Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951

Misac Pokonoming v Jeffery Simiri (2007) N4978

PNGBC v Jeff Tole (2002) SC694

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for negligence.

Counsel

J Morog, for the Plaintiff

25th September, 2015

1. CANNINGS J: This is an assessment of damages for negligence. The plaintiff Rachel Kui obtained a default judgment in her favour, establishing liability against the defendant arising from a collision that took place on 11 January 2012 near Handy Mart, Modilon Road, Madang, between:

· a Toyota Hiace bus that the plaintiff owned and operated as a PMV; and

· a Toyota Landcruiser owned by the defendant and negligently driven by his employee, Paul Mesa.

2. Mr Morog for the plaintiff submitted that the plaintiff should be awarded four heads of damage: (1) cost of repairs, K36,143.40; (2) special damages, K800.00; (3) loss of business, K244,800.00 and (4) general damages for pain and suffering, K10,000.00; a total claim of K291,743.40, plus interest.

1 REPAIRS

3. The plaintiff has adduced evidence of a quote from Ela Motors, Madang to repair her bus: K36, 143.40. Ela Motors is an authorised repairer of Hiace buses. I uphold the submission of Mr Morog and I award K36, 143.40 as damages in respect of the costs of repair.

2 SPECIAL DAMAGES

4. The plaintiff seeks K800.00 which, Mr Morog submits, represents the costs involved in pursuing the matter with the defendant. This claim is misconceived. Special damages are intended to compensate the innocent party for loss or damage incurred that is not presumed by the law to have been incurred. It is a special sort of damage that must be expressly pleaded and proved (PNGBC v Jeff Tole (2002) SC694, Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951, Golobadana No 35 Ltd v BSP Ltd (2013) N5340). The special damages claimed here have neither been pleaded nor proven. Nothing is awarded.

3 BUSINESS LOSSES

5. The plaintiff claims business losses of K244, 800.00. She has given evidence that she was unable to use the vehicle as a PMV for a period of two years and ten months (34 months) after the date of the accident and that she was earning K300.00 per day for 24 days of each month when the vehicle was being used as a PMV. That is:

K300.00 x 24 days = 7,200.00 per month x 34 months = K244, 800.00.

6. If a defendant causes damage to a plaintiff’s profit-earning asset, the plaintiff is entitled to damages to compensate her 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 her 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 (2007) N4978, Desmond Guasilu v Enga Provincial Government (2012) N4774).

7. There are two problems with the plaintiff’s claim. First, there is no set of accounts, audited or unaudited, to verify the figures. Secondly, the period to repair the vehicle is excessive. Any prudent PMV operator will ensure that their vehicle is covered by comprehensive motor vehicle insurance, which will significantly reduce the risk of it being off the road for a long period if it is involved in an accident.

8. I will assess lost profits at a nominal figure of K3, 000.00 per month. As for a reasonable period to effect repairs or organise a replacement vehicle I have looked at what Woods J allowed in the Kopen and Mappa cases (three weeks and 13 weeks respectively) and what I have allowed in similar cases (Daniel Jifok v Kambang Holdings Ltd (2008) N3475, Daniel Occungar v Luke Kiliso (2010) N4102 and Desmond Guasilu v Enga Provincial Government (2012) N4774, Charles Klakal Bafor v Samuel Kilane (2013) N5444, John Nuguwas v Peter Kopi (2014) N5504) (three months in each). I have compared the facts of this case with the facts in those cases. I allow a period of three months. The amount of business losses is K3, 000.00 per month x 3 months = K9, 000.00.

4 GENERAL DAMAGES

9. The plaintiff claims K10, 000.00 for pain, suffering and stress associated with having her PMV grounded and being unable to settle the matter with the defendant, who has promised much but delivered nothing. This is in principle a reasonable claim but there is little evidence to support what the plaintiff has deposed to. She says she is “elderly” but what does that mean? A medical report or clear evidence of her age would have helped. I award a modest amount, K2, 000.00.

SUMMARY OF DAMAGES ASSESSED

10. Cost of repairs: K36, 143.40

Special damages: 0...