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Nuguwas v Kaupa [2014] PGNC 8; N5504 (21 February 2014)

N5504

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 88 OF 2013

JOHN NUGUWAS
Plaintiff

V

PETER KOPI
First Defendant

ANTON KAUPA, MANAGING DIRECTOR, KUIMA SECURITY SERVICES LIMITED
Second Defendant

KUIMA SECURITY SERVICES LIMITED
Third Defendant

Madang: Cannings J
2013: 13 December,
2014: 7, 21 February

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

The plaintiff obtained default judgment and therefore established a cause of action in negligence against the defendants arising from a collision between a vehicle owned by the plaintiff and a vehicle driven by the first defendant. At a trial on assessment of damages the plaintiff claimed three heads of damage: (1) cost of repairs, K77,465.14; (2) loss of business, K35,568.80; and (3) special damages, K1,600.00; a total claim of K114,633.94, plus interest.

Held:

(1) Damages assessed were: repair costs, K10,000.00; loss of business, K9,000.00; special damages, 0; a total award of K19,000.00.

(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 K1,900.00, making a total judgment sum of K20,900.00.

Cases cited

The following cases are cited in the judgment:

Abel Kopen v The State [1988-89] PNGLR 655
Daniel Jifok v Kambang Holdings Ltd (2008) N3475
Daniel Occungar v Luke Kiliso (2010) N4102
Desmond Guasilu v Enga Provincial Government (2012) N4774
Graham Mappa v ELCOM (1992) N1093
Jonathan Mangope Paraia v The State (1995) N1343
Misac Pokonoming v Jeffery Simiri (2007) N4978

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for negligence.

Counsel

O Ore, for the plaintiff
S Kesno, for the defendant

21st February, 2014

1. CANNINGS J: This is an assessment of damages for negligence. The plaintiff John Nuguwas obtained a default judgment in his favour, establishing liability against the defendants arising from a collision that took place on 19 November 2012 at the Bafor junction of the Bruce Jephcott Highway, Madang Province, between:

• a Hino truck that the plaintiff owned and operated as a PMV; and
  
• a Toyota Landcruiser owned by the third defendant, Kuima Security Services Ltd, and driven by its employee, the first defendant Peter Kopi.
  

2. Mr Ore for the plaintiff originally submitted that the plaintiff should be awarded three heads of damage: (1) cost of repairs, K77,465.14; (2) loss of business, K35,568.80; and (3) special damages, K1,600.00; a total claim of K114,633.94. When I pointed out that the claim for costs of repairs seemed exaggerated and had little prospect of success, Mr Ore withdrew that part of his submission and left it to the discretion of the court to fix a more moderate sum.

1 REPAIRS

3. The plaintiff has adduced evidence of a quote from Ela Motors Madang to repair his truck: K77,465.14. Ela Motors is an authorised repairer of Hino trucks. However, I uphold the submission of Mr Kesno for the defendants that it cannot be accepted that this is a genuine quote for the repair of the plaintiff's truck. Nor can it be accepted, as claimed by the plaintiff in his affidavit, that he bought the truck brand new for K110,000.00. It is a lame excuse to say that he does not have any documents to verify the purchase. They would be easily obtainable from the motor vehicle dealer from which he claims to have purchased the vehicle.

4. I prefer the uncontested evidence of Alex Temambo, internal investigator of Kuima Security Services, who inquired into the veracity of the plaintiff's claims and uncovered evidence suggesting that the plaintiff's truck was a 2002 model, originally registered in 2004 and that the repair quote on which the plaintiff relies is a fabrication. The details on the quote do not match those of the plaintiff's truck. The year-make-model details on the quote are "05/TOYOTA/4.0 TON LWB FLATBED", which suggest that this was a quote for a Toyota-branded truck, perhaps a Dyna; and I take judicial notice of the fact that a Hino truck is a separately branded vehicle. Most importantly, the registration number on the quote, "WAD090", is different to the registration number of the plaintiff's truck, which is pleaded in the statement of claim, and stated in the plaintiff's affidavit, to be "P0875E".

5. find that the Ela Motors quote relied on by the plaintiff is not worth the paper it is written on. It has no probative value. So what evidence is there on which the court can assess the cost of repairs? It is undisputed that the plaintiff's truck was damaged and that the damage was caused by the negligence of the first defendant. But to what extent was the truck damaged? Again I find the evidence of Mr Temambo useful. He deposes that he, escorted by the Police, went to the plaintiff's village on 19 November 2013 and located a Hino truck matching the plaintiff's truck's description. The truck had its left hand door, front windscreen and rear view mirrors smashed. The body was in good condition. This evidence was unchallenged. It is reasonably to be inferred from this evidence that the damage to the truck was not nearly as serious as what the plaintiff has made it out to be. I award K10,000.00 as damages in respect of the costs of repair.

2 BUSINESS LOSSES

6. If a defendant 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 (2007) N4978, Desmond Guasilu v Enga Provincial Government (2012) N4774).

7. There were two problems with the original claim of K35,568.80. First, there is no set of accounts, audited or unaudited, to verify the figures. Secondly, the period to repair the vehicle was excessive. Mr Ore submitted that the plaintiff should be awarded business losses from the date of the accident, 19 November 2012, to the end of October 2013, which he says is not long before the trial started. The trial started on 13 December 2013. I cannot follow Mr Ore's logic and I dismiss the argument.

8. 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. I will assess lost profits at a nominal figure of K3,000.00 per month.

9. 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 (three months in each), and compared the facts of this case with the facts in those cases. I will allow a period of three months. The amount of business losses is K3,000.00 per month x 3 months = K9,000.00.

3 SPECIAL DAMAGES

10. This is a nebulous claim, unsupported by particulars or any credible evidence. Nothing is awarded.

SUMMARY OF DAMAGES ASSESSED

Cost of repairs: K10,000.00

Loss of income: K9,000.00

Special damages: 0

Total = K19,000.00.

INTEREST

11. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 19 November 2012, to the date of this judgment, a period of 1.25 years, by applying the formula D x I x N = A, where:

• D is the amount of damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus K19,000.00 x 0.08 x 1.25 = K1,900.00.

COSTS

12. 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. However, in this case the plaintiff made an exaggerated and false claim for repair costs and an exaggerated claim for business losses. In these circumstances I will allow the parties to bear their own costs.

ORDER

(1) The defendant shall pay to the plaintiff damages of K19,000.00 plus interest of K1,900.00, being a total judgment sum of K20,900.00.

(2) The parties will bear their own costs.

(3) Time for entry of the judgment is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
_____________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant