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Kui v Sapau [2015] PGNC 176; N6075 (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

Business losses: K9, 000.00

General Damages: K2, 000.00

Total = K47, 143.40.

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, 11 January 2012, to the date of this judgment, a period of 3.7 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 number of years and A is the amount of interest. Thus K47, 143.40 x 0.08 x 3.7 = K13, 954.45.

COSTS

12. If the defendant had cooperated with the plaintiff and the court I would have allowed the parties to bear their own costs as the plaintiff's claim has been exaggerated. However the defendant did not cooperate so it is only fair that the plaintiff be awarded costs.

ORDER

(1) The defendant shall pay to the plaintiff damages of K47, 143.40 plus interest of K13, 954.45, being a total judgment sum of K61, 097.85.

(2) The defendant will pay the plaintiff's costs on a party-party basis, which shall if not agreed, be taxed.

Judgment accordingly,
__________________________________________________________
Public Solicitor: Lawyer for the Plaintiff