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Milaisa v Jant Ltd [2009] PGDC 77; DC1013 (13 January 2009)

DC1013

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF MADANG

Case Number DCC 319 of 2007

BETWEEN:

THOMAS MILAISA
(Complainant)

AND:

JANT LIMITED
(First Defendant)

AND:

LEOPOLD SIREO
(Second Defendant)

MADANG: MARK SELEFKARIU (PM)
2007: 19th September – 21st December
8 February 2008 – 13 January 2009.

CIVIL: Motor vehicle accident-Damage done to complainant’s car through second defendant’s negligence- Liability admitted and repair costs paid by first defendant- Issue of costs of hire whilst complainant’s car being repaired is contested and tried.

CASES CITED: None

LEGISLATION: None

Counsel:

Mr. J Lai for Complainant
Mr. C Kulubob (Personnel Manager) for Defendants

13 January 2009

SELEFKARIU, PM: The complainant is a lawyer by profession and operates a law office in Madang Town. He owns a vehicle a Nissan Sedan, registration number MAC 997 and uses it for his family use and for the general operation of his law office.

The second defendant is an employee of the first defendant, company, Jant Limited and drove the company’s vehicle a Nissan Datsun, registration number MAC 935 on 10 July 2007 doing company work.

He then drove to the office of Internal Revenue Commission situated at Tilom Street in the Township of Madang.

After completing his work and before driving off he needed to reverse in order to properly align his vehicle. He said before reversing he saw the complainant’s vehicle parked outside his office and reversed at a slow speed but overshot, resulting in hitting the back of the complainant’s vehicle.

As a result the complainant’s vehicle was damaged and was repaired at Coastal Automotive Limited at the cost of K1870.00.

The first defendant being the employer and the owner of the Nissan Datsun admitted liability and paid for the cost of repairing the complainant’s vehicle.

The complainant however made a further claim saying that whilst his vehicle underwent repairs he hired a vehicle from Snovex Limited for K3000.00 for three days for his family usage and principally for the operation of his office.

The complainant said the hire was incidental to the negligence of the second defendant’s driving, subjecting him to unbudgeted expenses and lots of inconvenience.

The defendants however argue that the hire was not necessary for two reasons: (1) they only agreed to pay for the repair cost and have nothing to do with the hire which is outside the agreement, and (2) the repairs of the complainant’s vehicle took only a day to complete and not three days as claimed.

ISSUES

1) Is the complainant entitled to claim for incidental or collateral damages?

2) If so, for how many days and for how much?

The tort of negligence arises when the duty of care is breached and the defendant’s conduct is traced to the injury or the damage done to the complainant.

In the present case the defendants admit to and have paid for the damaged made to the complainant’s vehicle.

The additional claim of K3000.00 is collateral to the primary cause which is the second defendant’s conduct for not keeping a proper look out when reversing the vehicle he was driving and damaging the complainant’s vehicle.

A sub-issue that might arise is whether the collateral claim can be clearly traced to the original cause, which is the causal link.

According to evidence there is no doubt the hire of the Snovex Ltd vehicle was really necessary to avoid or minimize the inconvenience and suffering that resulted from the defendants’ negligence.

In my view the causal link is established and that the complainant is entitled to such a claim and so issue (1) is answered in the affirmative.

In relation to issue (2) and this is where the real contest is centered, the defendants argued that the complainant’s vehicle was repaired and released the same day and so he is entitled to claim for one day hire only and not three days as claim.

In the evidence of the complainant he produced the invoice for the Snovex Ltd vehicle hire for three days including the evidence of witnesses Francis Poma and Serebu Mainao who were both cross examined.

The evidence of Francis was slightly confusing because a number of documents he entered into when giving information to either the complainant or the defendants at various times of their inquiries were in contradiction of each other.

The confusion however can be explained to the effect that, Francis was giving information without checking with other persons such as the company’s clerk for its accuracy before disseminating them.

In the evidence of Serebu he said the work on the complainant’s vehicle took the form of dismantling, panel beating and finally spray painting. He said such jobs require couple of days to complete; hence they include such work like dismantling, repairing and refitting the parts and spray painting for which the paint needed time to properly dry up before delivery.

The complainant said the repairs took three days and so the hire; hence the incidental claim as a result.

In cases of contract or tort and in consideration of damages the principle is that the parties must mitigate their own losses.

The accident happened on 10 July 2007 and even though the defendants admit liability they were reluctant to assist in repairing the complainant’s vehicle immediately.

To mitigate his own losses the complainant had to help himself and so arranged for the repair of his vehicle.

In cases like this one sometime the claim can be quite exorbitant and the best the courts can do is to consider awarding a reasonable amount of damages.

A sub-issue therefore is whether the complainant’s claim is reasonable under the circumstance. In my view and based on evidence the type of work which was described to be done on the complainant’s vehicle would take a couple of days and three days appears to be reasonable.

In answer to issue (2) I think the complainant is entitled to recover his cost for the hire of Snovex Ltd vehicle for K3000.00 as special damages.

The complainant also claims K1500.00 as general damages for inconvenience and unbudgeted expenses including the defendants’ refusal to help him mitigate his losses.

For this head of damages I see no wrong in awarding such a sum because had the defendants cooperated with the complainant such as providing a vehicle for his use whilst his vehicle undergoes repair or the defendants repair the damaged at there cost and arrange a hire for the complainant for the duration of the repairs would have avoided this trial.

I think the defendants failed to see that the claim arose from their negligence and to leave the complainant do his own thing like what he did then would amplify his claim.

In my view and under the circumstance I find the claim by the complainant quite reasonable. Accordingly I also grant to the complainant this part of his claim for general damages.

I also award interest at 8% pursuant to Judicial Proceedings (Interest on Debts and Damages) Act from laying of the processes to judgment.

COURT ORDER: The defendants are adjudged to pay damages to the complainant in the sum of K 4500.00 including interest at 8% from laying of the complaint to judgment.

It is also ordered that the total amount adjudged be settled within twenty one days from today.
Cost is also awarded to the complainant.
______________________________________________________________________________
Lawyers for Complainant: Thomas Ilaisa Lawyers & Attorneys
Personnel Manager for the Defendants