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Mutik v Daniel [2001] PGDC 1; DC77 (7 March 2001)

Unreported District Court Decisions

[2001] PNGDC 1 - NATHANIEL MUTIK V WILLIAM DANIEL

[2001] PNGDC 1

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO. DC 503/00

NATHANIEL MUTIK

Complainant

V.

WILLIAM DANIEL

First Defendant

PAPUA NEW GUINEA ELECTRICITY COMMISSION

Second Defendant

Port Moresby

G. Manuhu, Chief Magistrate

21 February 2001

7 March 2001

JUDGMENT

ASSESSMENT OF DAMAGES � Motor vehicle damaged in accident � Claim for loss of vehicle � Damages limited to cost of replacement.

Case referred to:

Kopen v. Independent State of Papua New Guinea, [1988-89] PNGLR 659.

J.B. Nanei, for the Complainant.

L. Maru, for the Applicant.

7 March 2001

G. MANUHU:� The Complainant is claiming a sum of K7,000.00 being the value of his vehicle which was damaged in a road accident involving a vehicle owned by the Second Defendant and driven by the First Defendant who was the formers� employee.� Liability is not denied by both defendants.� The matter is simply for assessment of damage.

The accident occurred on or about 25 June 1994 at the junction of Casuarina Road and Toma Street in Rabaul, East New Britain Province.� The Complainant�s vehicle was a Toyota Carina Sedan, Registration No. CAA 291 and beige in colour.� It was purchased in Port Moresby at Paradise Motors for K7,000.00 on 6 November 1991 and shipped to Rabaul thereafter.� It was being driven by the Complainant on the said day when the First Defendant without due care drove into it.� The vehicle was allegedly damaged beyond repair.

Despite submissions from defence counsel that there are no documentary proof, in the absence of any evidence to the contrary, I accept the Complainant�s sworn evidence, firstly, that the purchase price of the vehicle was K7,000.00.� I also accept that the vehicle was beyond repair after the accident.� I also accept that the Complainant had used the vehicle for 2 years and 7 months before the accident.� These are the facts relevant to assessment of damages.

The relevant principles on assessment of damages in relation to damage to chattel or property have been ably covered by both counsel.� In assessing the loss in respect of property damage, the Complainant is entitled to restitution for the loss of its value to him: restitutio in integrum. Usually this loss, the differential in value before and after the accident, amounts to the cost of repair or replacement.�

In Kopen v. Independent State of Papua New Guinea, [1988-89] PNGLR 659, the plaintiff, whose 25-seater bus was damaged as a result of a motor vehicle accident, claimed damages for its loss.� The bus was subject to hire purchase and because repairs were not effected and the plaintiff was unable to earn income from its use, instalments fell into arrears and the bus was repossessed.

It was held by Woods, J. at page 660 that the basic rule in damages for negligence is that the measure of damages in the case of damage to chattel is the cost of repairs but if it is unreasonable from a business point of view to repair the vehicle or if the vehicle is damaged beyond repair, then the basic measure is the cost of replacement in an available market.� That is the differential in value before and after the accident.��

In his claim for K7,000.00 as replacement cost, the Complainant appear to acknowledge the depreciation factor over the period of 2 years and 7 months but insists that the amount claimed is justified because of shipment and other incidental expenses on the vehicle.� With due respect, I must disagree.� If I accept the Complainant�s argument, I would be navigating outside the parameters of the principle of restitutio in integrum.� Shipment and other incidental expenses are not lost, the only loss is the vehicle, bought for K7,000.00 and had been in use for 2 years and 7 months immediately before the accident.

Secondly, the Complainant has not produced any evidence on the actual value of the vehicle immediately prior to the accident.� Consequently, there is no evidentiary basis for the court to contemplate the actual value of the vehicle to be higher than the purchase price.� For assessment purposes, therefore, the court is stuck with K7,000.00 as the purchase price and, immediately before the accident, the vehicle had been in use for 2 years and 7 months warranting the depreciation factor to be considered.�

Taking depreciation into account, defence counsel considers K3,500.00 as just compensation for the loss.� The Defendants had offered to settle the matter for K4,000.00 but the Complainant did not agree.� Consequently, it is argued that the matter has been unnecessarily prolonged because of the Complainant�s unreasonableness.� An award for K3,500.00 is, therefore, submitted to be appropriate.

I agree that the Complainant is entitled to an amount less than K7,000.00 but I do not agree with how the defence counsel arrived at K3,500.00.� At the first instance, there is no technical evidence that the offer of K4,000.00 was appropriate.� In other words, I do not know how the defendants made that assessment.

In any case, there is no material before me to ascertain the monetary value of depreciation.� It does not help at all.� We have got the law right.� The execution of the law requires further technical evidence that we do not have.� The burden of proof is on the Complainant to prove what he wants but on the evidence I cannot just dismiss the proceedings for the lack of evidence referred to.� Indeed, I am in no better position than the defendants were when they made the offer of K4,000.00.� I am, however, required by law to make an assessment for the undisputed loss.�

Taking into account depreciation and the principle of restitutio in integrum I propose to proceed thus.� As I have stated, I will not award K7,000.00 to the Complainant.� Likewise, I will not award K3,500.00 to the Complainant as proposed by the defence.� I will fix the award at the midway point between the proposed figures.� That midway point is K5,250.00.� In my considered opinion, this figure still accommodates depreciation so that the requirement of the principle of restitutio in integrum is justly met.� It is also a more appropriate estimate compared to the one suggested by the Defendants.

I am comfortable with the above approach also for a different reason.� In the context of alternative dispute resolution we say that a win-lose result is not the best way of resolving disputes in court.� A win-win situation is a better option.� Given the difficulties I face in this case, the assessment I have arrived at is a win-win situation for all parties.

On that note and without prejudice, I acknowledge the attempt made by the Defendants� lawyers to settle this matter out of court which has been of assistance to this court in reaching its final conclusion.� The courts would like to see more genuine efforts by lawyers and litigants at settling disputes out of court.

I find for the Complainant in the sum of K5,250.00 with interest.� Costs follow the event.

Orders accordingly.

Lawyer for the Complainant: JB Nanei & Co. Lawyers.

Lawyer for the Defendants: Numana Kila Lawyers.