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National Court of Papua New Guinea |
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:
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 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:
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 profits. I take the same approach in this case.
15. The amount of business losses I award is K3,000.00 per month x 3 months = K9,000.00.
Summary of damages awarded
➢ Damage to bus = K22,500.00
➢ Business losses = K9,000.00
➢ Total damages = K31,500.00
INTEREST
16. It is normal practice in a case in which damages are awarded to also award interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1(1) is the relevant provision. It states:
... in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.
17. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.
18. I exercise that discretion in the following way:
1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard.
2 The rate of interest commonly used is 8%. In view of current economic conditions in the country 8% is the proper rate of interest.
3 Interest should be payable on the whole of the sum of damages for which judgment is given.
4 The commencement date for the appropriate period will be when the cause of action accrued, 8 June 2007. The end of the period is the date of judgment, 25 June 2010. The appropriate period is 3.1 years.
19. I calculate the amount of interest by applying the following formula:
Where:
Thus:
COSTS
20. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. There is nothing about this case to warrant departure from the general rule. The defendants will pay the plaintiff's costs.
ORDER
21. I direct entry of judgment in the following terms:
(1) damages payable by the defendants to the plaintiff of K31,500.00;
(2) interest payable by the defendants to the plaintiff of K7,812.00;
(3) being a total judgment lump sum of K39,312.00 to be paid within 30 days after the date of entry of this judgment;
(4) costs of the proceedings shall be paid by the defendants to the plaintiff on a party-party basis, to be taxed if not agreed;
(5) time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.
Orders accordingly.
____________________________
Lawyers for the plaintiff : Self-represented
Bradshaw Lawyers: Lawyers for the Defendants
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