Nangi v Solomons [1996] PGDC 7; DC8 (25 October 1996)

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DAMAGES - Quantum - Amount claimed derived from single suspect quotation - Capacity of Complainant to sue - lack of evidence on whether Complainant is suing as driver or owner - Case dismissed.

KUBAK M:� The Complainant makes a claim against the Defendant for the sum of K2,878.71, being costs for vehicle parts and repairs for his vehicle for damage occasioned by the Defendant in a motor vehicle collision. The Complainant in his statement of claim pleads that the Defendant John Solomon, �did without due care and attention drive and manage a motor vehicle, to wit, a Toyota Truck yellow in colour Registration Number AFL 219 which collided on to the Complainant�s PMV Mitsubishi Bus Registration Number P. 655A where the said bus was damaged and the Complainant suffered a great loss of K2,878.71 for parts and repairs occasioned by the said collision.

The Complainant therefore claims K2,878.71 as per quotation Steamships Automotive Pty Ltd, attached and marked �An Annexure A�.�

The central issue that falls to be determined in this case is simply one as to the quantum of damages.� I say this because on the basis of the facts of this case, there is, in my view, no dispute that there was a motor vehicle collision involving the vehicles described in the Complainant�s Statement of Claim.�� There is no dispute also that the First Defendant was charged and convicted by the Traffic Court in respect of the accident in that he drove without due care and attention.

The evidence both in support of and in defence against the claim has been solely by way of Affidavits.� The Complainant has sworn an affidavit in support of the claim.� The Defendants on the other hand rely on the affidavit of one Phillip Lakani, a third driver on the road and within the immediate proximity of the accident, at the material time.

First, the Complainant, relevantly deposes in his affidavit that� he is the Complainant and that on or about 1st August 1995, he was the driver of a PMV bus, Mitsubishi, Registration No. P.655A, which received substantial damage as a result of the accident.� He further deposes relevantly thus:

N2>�5.�� As a result of the said accident, the said Mitsubishi PMV bus, Registration No. P.655A, which was driven by the Complainant was substantially damaged, the result and costs of repairs and spare parts of such damage being Two Thousand Eight Hundred and Seventy Eight Kina and Seventy One Toea (K2,878.71).

N2>6.�� As a result of the said accident, the Complainant suffered loss and damage to the value of Two Thousand Eight Hundred and Seventy Eight Kina Seventy One Toea (K2,878.71) plus legal costs.�

In response to the Complainant�s affidavit, the affidavit of Phillip Lakani, an employee of Jascon Engineering was filed.� He deposes to being a driver and also a technical man performing, from time to time, mechanical jobs in his employer�s workshop and which jobs have included panel beating and spray painting.

He recalls early August 1995 when in the course of his driving duties he came upon the Complainant and the First Defendant inspecting their respective vehicles within the vicinity of the Boroko ANZ Bank.� He stopped his vehicle on the side and approached the drivers.� He further deposes relevantly as follows:

N2>�6.�� At the scene of the accident I heard the two drivers talking about reporting the matter to the Police.� I then encouraged them to do that.� During this course of events I had the opportunity to see for myself the actual damage sustained by the two vehicles.� In my own observation the PMV bus sustained only a small dent in the rear.� It�s rear lights were not damaged and its rear glass was still intact.� It was only the part of the collision that actually got dented.

N2>7.�� The yellow truck Registration No. AFL 219 had actually received slightly bigger damage than the bus in that the front grill (made of plastics) were broken and it had slightly bigger dent as a result.

N2>8.�� To the best of my knowledge based on past experience on jobs done on panel beating and spray painting, my estimation for the job of repairs that would have been done on the PMV bus would not have exceed K350.00.

N2>9.�� I had forgotten about the matter when in about the month of July 1996 the Lawyer for the two Defendants approached me and asked if I was willing to give evidence.� I answered that I would and he showed me a copy of the Summons served on the First Defendant.� The first thing I noticed was the amount claimed by the Complainant.� At first I thought it included the fess for his Lawyer and I asked Mr Nouairi if this was the case.� But Mr Nouairi said it relates only to the alleged costs incurred in fixing his bus.�

As I have noted, the main question that falls to be determined would be as to the quantum of damages.� However, having regard for the evidence in its totality and in particular the relevant portions of affidavits herein before cited, I hasten to say that to my mind there are number of vital collateral questions that need to be answered by this Court.� First is the question as to what capacity is the Complainant pursuing this action.

Is it in his capacity as driver because he had had to personally meet the costs of repair.� Or is it in the capacity as owner of the subject Mitsubishi PMV.

Secondly, the question arises as to what exactly is the extent of the damage sustained by the subject Mitsubishi PMV.

The claim, if I can say again, is for a specific sum of money K2,878.71.� This amount is not only prayed for in the Complainant�s Statement of Claim but is indeed deposed to on the affidavit of the Complainant.� This is all very well except that the figure of K2,878.71 has been extracted from a single quotation that does not form part of the evidence proper, in that it is not even annexed to nor is it referred to in the Complainant�s affidavit.

Rather it has simply been referred to and annexed to the relevant Complaint and Summons.� Not only this, but as I have said, it is the only quotation, from Steamships Automotive Pty Ltd and is dated the 14th August 1995.

For some inexplicable reason the quotation written in black pen was initially made to one �Simike� or some similar such name which was then crossed out with a blue pen and then in scrawly hand writing the Complainant�s name was inserted.

In addition to the above observation, it appears that no other quotations have been produced in evidence.� In effect there is no quotation properly before the Court evidencing the cost of damage asserted by the Complainant.

Although it may appear trivial, the Complainant�s affidavit does not state who took the vehicle in for purposes of obtaining the quotation.� Not only is this not shown in evidence but the quotation obtained and which formed the basis of this claim no doubt, is dated 14th August 1995, a clear fortnight after the accident.� There is no evidence as to why the Complainant had to wait this long before obtaining a quotation.� However considering the evidence and or the lack thereof from the parties in its totality, I would say that the quotation is suspect and could have actually been obtained by one �Simike� for the same bus after it may have been involved in a separate accident whilst driven perhaps by the mysterious �Simike� whose name originally showed on the quotation.� This is a question that remains unanswered to my mind.

As to what capacity the Complainant sues is not exactly clear.� It seems to me that he is suing as the driver.� If so then there is no evidence to show that he actually incurred the sum of K2,878.71 in repairing the subject vehicle.� This, in my view, is necessary to be shown where the Complainant is merely the driver and had to personally meet the costs of repair.

If he is the owner, and I do not see where in the Complainant�s affidavit is this shown, then he of course is entitled to sue in such capacity for the costs of damage and of course such damage must clearly be supported by evidence which brings forth another vital issue - the extent of the damage.� Apart from the reference to �substantial damage� on affidavit by the Complainant, I am of the view that quite frankly this Court is bereft of any evidence supporting the asserted �substantial damage�.

In the end, I am of the view, that even on the most generous application of the civil standard of proof, the Complainant sadly has failed to make out his claim against the Defendants.� I will dismiss the claim with costs to the Defendants.

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Papua New Guinea District Court

Nangi v Solomons [1996] PGDC 7; DC8 (25 October 1996)

Unreported District Court Decisions