DC349

PAPUA NEW GUINEA
[IN THE DISTRICT OF JUSTICE]

CASE NO 82 OF 1991

BETWEEN

James Weiya
Complainant

V

John Tom Pugim
First Defendant

Niugini Building Supplies Ltd
Second Defendant

Mt. Hagen: Appa, P.M.
2000: 16th November, 15th December
2001: 27th June

JUDGMENT

Civil Jurisdiction – claim for economical loss PMV Vehicle in workshop for repair after damage - repair bills paid no stoppage to reasonable economical loss.

Cases cited
Kopen -v- The State [1988–89] PNGLR 659
Bodley -v- Reynolds [1846] 8QB
Dixon Ltd -vs- JL Cooper Ltd [1970] 114 501 JO 319.

Counsel
Isaac Umbu for the Complainant:
Maike Zimike for the Defendant:

APPA, The complainant claims in this proceeding that on 2nd April 1999 his 25 seater PMV coaster Bus Reg, No. P7915 damaged in a road accident at Kabiufa, EHP by the negligent driving of the first defendant driving the second defendant’s vehicle a Toyota Land Cruiser Reg. No. HAD – 331.

The first defendant was an employee of the second defendant and who was convicted and fined by the Goroka Traffic Court for negligent driving.

The complainant now claims for economic loss or money he would have earned from his PMV operation if it had not been for the accident which had caused the vehicle to be put in a workshop for repairs for a total of 37 days. As part of settlement the second defendant had paid a total of K1770.09 towards repair cost.

The above facts were not in dispute. The issue before this court was whether or not the defendants were liable to pay for economic loss as claimed.

The complainant’s counsel had referred to some relevant case authorities in support of the claim. Defence counsel also filed written submission and cited the case of Kopen –v- the State [1988-89] PNGLR 659 in defence and or mitigation of damages. Counsel for complainant also cited Kopen’s case in support of his case as well as two English cases which addressed the same issue of pecuniary and economic losses occasioned as the result of the chattel being kept away for repairs.

Defence argued that the payment of K1770.00 towards repair cost put to rest any further obligation to pay for same and raised the issue of rest judicata. They further claimed that the claim for economic loss was too remote a damage for which they are not liable.

In my view, the principle of rest judicata does not apply here since the same issue had not been dealt with by any court as to remoteness of damage. I refer to the cases cited.

In Kopen’s case, His Honor Woods, J. said … where a chattel used by a plaintiff in the course of his business is damaged or destroyed, the plaintiff is entitled to the loss of profits." In a foreign case of Bodley –vs- Reynolds [1846] 8 QB 779 in similar circumstance, it was said that … if the plaintiff incurs pecuniary loss as a direct result (or 
consequences) of the tort he may recover this as special damage in addition to the market value of the chattel".

Also in Dixon Ltd -vs- JL Cooper Ltd [1970] 114 SOL JO 319, the court held in such situation that- "There can be recover in respect of average profits which would have been earned but for the chattel not being available during a reasonable period for repair". (Refer to "Street on Tort" 6th edn, p.57).

I am satisfied by the above stated authorities that the complainant is entitled to a reasonable economic loss. As the direct result of accident caused by the first defendant who was on duty of the second defendant, the damaged PMV bus had to be put in a workshop for 37 days for repair.

On quantum, complainant assessed losses at K250.00 per day times 37 days added up to K18,500.00 but after due allowances made to expenses, he now asks for a global figure of K10,000.00. The deductions were made for fuel expenses, wages for crew and driver, miscellaneous expenses.

It was unfortunate that the defence counsel was so confident of winning the case or perhaps forgot to dwell on mitigating factors such as above so there is a problem of making any further deduction. However I have to strike a balance here and say that since we are not sure if complainant would have earned this kind of money within the period in question, e.g. the number of passengers conveyed between Hagen and Lae and return considering resting days like Sundays or other diversions from the Lae trips. I have to make due allowances for this uncertainty and make a global deductions of K3000.00 so the balance remained to be paid by the second defendant is at K7000.00.

I enter judgment for the complainant for a sum of K7000.00 plus 8% interest to run from date of summons and costs to be taxed if not agreed

Warner Shand Lawyers: Complainant
Paulus M. Dowa Lawyers: Defendant