DC625

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 10 of 2007

BETWEEN

KENNETH TAME
Complainant

AND

WILLIE KUANDE
JAMES DAMBE
BENNY IRALI
TOYOTA TSUSHO (PNG) LTD
Defendants

Goroka: M Gauli, PM
2007: August 20, 31

CIVIL - Claims damages for negligence – Consent by the complainant for the repairs – Complainants knowledge of the risks – Loss of income – Need for proper business records – Proof of Loss of income. 

Cases Cited
Blyth –v- Birmingham Waterworks Co. (1856) L.R. 11 Ex, p.784
Thomson –v- Quartermaine (1887) 18 Q.B.D 694
Donaghue –v- Stevenson (1932) A.C 580
James Robert Colbert –v- The State [1988-89] PNGLR 590
Pice Dambe –v- Augustine Peri & The State [1993] PNGLR 104
Helen Jack –v- Marius Karani & The State [1992] PNGLR 391
Baupupu Arinuma –v- Likeman & The State [1976] PNGLR 200
Graham Mappa –v- PNG Electricity Commission Elcom [1995] PNGLR 170

References
Nil

Counsel
For the Complainant	- In Person
For the Defendants	- Mr. William Igo

17 August 2007

DECISION OF THE COURT

M Gauli, PM: In this action the complainant Kenneth Tame claims against the defendants for a sum of K10, 000.00 in damages for negligence. He claims that the defendants negligently performed mechanical repairs on his vehicle that caused damages to the cylinder head. The vehicle could not be used for several days thus suffered loss of business. The defendants deny negligence and liability and claims that the damages resulted from the complainants own negligence.

2. The parties have agreed for a trial by affidavit evidence. They relied on all the affidavits filed before the trial date of the 20 August 2007. Any affidavits or documents filed on the trial were rejected by the Court. The Complainant relied upon the affidavit evidence of Kenneth Tame dated 01 February 2007, and the affidavits of witnesses Cliff Mao and Albert Yawa sworn and filed on 07 August 2007. The evidence for the defendants relied on the affidavits of the defendants William Kuane, James Dambe the service manager and Benny Irali, the branch manager of the Fourth Defendant trading as Ela Motors sworn and filed on 25 and 26 June 2007 respectively. I will turn to their evidence when I discuss the issues.

3. The brief facts which are not disputed are as follows. The complainant owns and operates a vehicle as a PMV namely the 25 seater Toyota Coaster bus white/green in colour bearing registration number P.391. He operates this PMV bus seven days a week on Route 100 between Lae, Morobe Province and Goroka in the Eastern Highlands Province. He bought the said vehicle in September 2003 from Ela Motors. On the 20 of September 2006 the said bus developed engine problem at Kassam along the Okuk Highway. His private mechanic Albert Yawa diagnosed the said bus and found that it has a crack on one of the valve seats in the cylinder head. Since the mechanic did not have the proper tools nor the skill he recommended that it be taken to Ela Motors for repairs. On the next day, 21 September the complainant brought the cylinder head to the Ela Motors Service Center in Goroka to be repaired. The problem was attended to by Ela Motors servicemen by tag wielding using a second hand part as Ela Motors did not have the particular part namely 14B valve in stock. The complainant paid K100.00 for the job done. He took the repaired part and installed the cylinder head. After four weeks of use the problem re-occurred on the 29 October 2006 and reported the problem to Ela Motors Goroka the next day on the 30 October. On the 02 of November 2006 the Ela Motors towed the said bus to their workshop for repairs as a return job. Later the Ela Motors decided not to work on the bus as return job and offered the complainant to pay for the repairs on a discount price since the amount already paid for the earlier service was much less than the repairs that needed to be done. The complainant rejected that offer. The complainant provided one piston head and using the old piston rings and con rod bearings, the Ela Motors mechanic fitted these in. However the engine could not kick start. So the Ela Motors towed the said bus back to where it was originally situated the 04 of November 2006. On 16 November the complainant secured one complete second hand cylinder head for K1, 000.00. He then engaged his private mechanic and installed the cylinder head and put the bus back on operations. The first, second and third defendants are the employees of the fourth defendant.

4. The facts in dispute are these. The complainant was been warned by Ela Motors of the consequences of tag wielding a second hand valve seat on the cylinder head. The damaged valve was only temporary tag-wielded to allow the complainant to bring the vehicle from Kassam to Ela Motors workshop for proper repair which the complainant failed and instead had operated the vehicle for four weeks before the problem re-occurred. There are two issues to be considered. And the issues are as follows:

i.	Was there negligence on the part of the defendants?
ii.	If the defendants are negligent, could the complainant claim for the loss of business as a result of negligence? 

5. Issue No 1: Was there negligence on the part of the defendants?

Negligence in tort is actionable by a person who suffers injury or damage as a consequence of a breach of duty by that person from causing injuries to the other person. Negligence is defined in the following cases in this way. In Blyth –v- Birmingham Waterworks Co. (1856) L.R 11 Ex, at p. 784, Anderson B defines it as: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” And in Thomson –v- Quartermain (1887) 18 Q.B.D at p. 694 Bawen L.J said: “Negligence is simply neglect of some care which we are bound to exercise towards somebody.” While Lord Atkins, in the case of: Donoghue –v- Stevenson [1932] A.C at p. 580 said: “You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mine to the acts or omissions which are called in question.”

6. In the present case the complainant took the cylinder head of his bus to the Defendants to be fixed. The defendants carried out the repairs by tag wielding the damaged valve in the cylinder head. That problem re-occurred again after four weeks of use. The complainant Kenneth Tame in his affidavit evidence dated 01 of February 2007 never mentioned of whether or not the defendants have warned him of the likely consequences of tag wielding the damages valve seat. He neither mentioned that the defendants have or have not told him to bring his vehicle straight away to the defendants workshop for proper repairs to be done. When the complainant took his damaged valve seat part to the defendants workshop, Mr. Konts Jacob Pits, the workshop supervisor told him that they do not have that part available. And he had a commotion with the supervisor. At that time the first defendant Willy Kuande, the mechanic from Ela Motors, told the complainant that he had a second hand valve that was in good condition. To install that valve seat it requires a lock tight glue. The workshop had none in stock. The complainant and defendant Willie Kuande drove around the possible auto parts shops and hardware shops but were unable to find this lock tight glue. The workshop supervisor Mr. Konts advised defendant Willie Kuande to tag-wield on the side of the cylinder head and press in the valve seat. And that was done in 20 minutes. He paid the bill of K100.00 for the work done and left with the repaired cylinder head.

7. The witness Cliff Mao, the driver of the complainant’s PMV bus in his affidavit evidence sworn on the 07 of August 2007 gave evidence of his presence with the complainant on the 21 of September 2006 at the defendants workshop, with the damaged cylinder head for repairs. The Ela Motors mechanic explained to them of the problem with cylinder head and were told that there is no parts available. He said the complainant never made any agreement with anybody to wield the second hand valve seat onto the cylinder head nor did the defendants told the complainant to bring the bus to the Ela Motors workshop.

8. The witness Albert Yawa is the private mechanic for the Complainant. In his affidavit evidence sworn and fixed on the 07 August 2007 gave evidence that he was the mechanic who diagnosed the complainant’s bus at Kassam. He also accompanied the complainant and took the part to Ela Motors workshop in Goroka on 21 September 2006. His evidence also confirms the evidence of Cliff Mao that the complainant never made any form of agreement with the defendants to tag-wield the valve seat as a form of quick-fix nor did the complainant agree to bring back the bus to the defendants workshop to fit a new cylinder head. This witness confirmed the complainant driving out with the first defendant W. Kuande to look for a lock tight glue to refit the valve seat. They drove back and about an hour later the repair work was done.

9. The affidavits of witnesses Cliff Mao and Albert Yawa were filed some six weeks after the defendants have filed their affidavits and their amended defence. Earlier on the 26 of February 2007 when the defendants filed their defence, the complainant never replied the defence nor filed affidavits to that effect. The complainant only came up with affidavits of his two witnesses Mao and Yawa some six months later after the defendants had filed their earlier defence. This must therefore cast some doubt as to the truthfulness of their evidence. 

10. The complainant on the 20 August 2007 filed the affidavit of witness Blaise Pigaman when this action proceeded onto trial. I rejected the filing of this affidavit for two reasons. First this affidavit was tendered on the date of trial and the copy had not been served on the defendants or their counsel until the day of the trial. Secondly the parties have agreed for a trial to be by affidavit evidence and both have decided to make their respective submissions on the same day on the 20 August.

11. The defendant’s evidence basically is that they did not have in their stock the valve seat both in their workshop in Goroka and throughout the country. Defendant William Kuande in his affidavit gave evidence that the complainant really needed a valve seat for his cylinder head quickly that his PMV bus could be moved to safety from Kassam where it broke to Goroka and get it properly fixed. He was worried his PMV could get damaged or stripped and parts stolen by rascal if it stayed longer. Defendant Willie Kuande told him that he had second hand valve seat. He explained to him that this comes in as part of a complete cylinder head from the factory and not as separate parts. He further explained to the complainant the consequences of a second hand valve seats it could damage the entire engine if it did not fit well or if the part is different in age from the others. He further explained that to install the valve seat to the cylinder head it needs to be done by a machine to ensure there is no leaks when it is refitted. The complainant considered this advise then he approached the workshop supervisor Jacob Konts and had a chat with him. After a few minutes defendant W. Kuande was told to go ahead and fit the second hand valve seat to the cylinder. This was only temporary to get the bus out of Kassam to safety that day. Due to the urgency of it no thorough testing of the valve was done including leaks and engine tests. Due to the complaint’s insistence the workshop supervisor Mr. J. Konts told the complainant that valve seat could only be tag wielded to the cylinder head but the bus need to be brought into the workshop immediately for a new cylinder head to be installed. The complainant never brought the bus to the defendant’s workshop until it broke down again a month later.

12. The defendant James Dambe, the service manager with the Ela Motors in Goroka, gave evidence in his affidavit sworn and filed on 25 June 2007. He was not aware of the event of the 21 of September 2006. He only became aware of that event on the 30 October 2006 when the complainant brought to him the same 14B cylinder head to Ela Motors in Goroka. Much of what he stated in his affidavits are hearsay evidence. However he affirms the evidence of defendant Willie Kuande in respect to the dangers of fitting a second hand valve seat to a cylinder head. The complainant wanted the Ela Motors to replace the parts and overhaul the engine at the Ela Motors cost because it was their wrong advice and improper work ethics that caused the damage.

13. On 2 of November 2006, the defendants discussed and agreed to repair the cylinder head particularly the valve and replace one piston head only. That the complainant to pay for the repairs but with discount. The bus was then towed in on the same day. The defendants explained to him that it is the normal procedure of the Ela Motors that the machining of the valve seat to the cylinder head is sublet to external vendors through its Parts Department especially with Morobe Engineering’s in Lae to resize the damaged valve seat. He was informed that when Ela Motors raise a purchase order for flat job, it will take 3 to 4 days for the cylinder head to be ready and another day to be tested and refitted. The complainant did not agree with the repaid period require and or the discount offered. He then towed the vehicle back to his residence.

14. Having stated the evidence of both parties I find on the balance of probabilities that the complainant’s vehicle broke down at a location which was unsafe to keep the vehicle any longer. He learnt that the Ela Motors did not have the needed part in their stock. He wanted something to be urgently done to get the bus out of the danger zone that same day. In his own evidence he said he had a commotion with the Ela Motors workshop supervisor. This shows that he was in desperate need of a damage valve seat to be repaired. There was a second hand valve seat available. He was told of the consequences of using a second hand valve seat been installed to the cylinder head without been machined in. I am satisfied by the evidence for the defendants that the complainant was informed of the likely consequences. He was told that the damaged valve seat will be tag-welded only as a temporary measure only to allow him to bring his vehicle in to the workshop for proper repairs. After he was being well informed of the dangers, the complainant had allowed the defendants to carry out the repairs. After the repaired cylinder head was installed that same day he failed to take the vehicle to the defendants workshop or to other workshops for proper repairs to be done. He kept using the vehicle for a month before the same problem re-occurred. Under the given circumstances I find that defendants could not be held to be negligent in carrying out the repairs they did to the complainants damaged valve seat. The tag-welding of the valve seat to the cylinder head was done at the consent of the complainant only to bring the vehicle out of a danger zone to safety. He failed to do what he was told to do.

15. The complainant in his submission referred to this Court the following cases: James Robert Colbert –v- The State [1988 – 89] PNGLR 590; Pike Dambe –v- Augustine Peri & The State [1993] PNGLR 104 and Helen Jack –v- Marius Karani & The State [1992] PNGLR 391. In the first case Mr. Colbert the plaintiff, a teacher employed at Idubada Technical College was given accommodation in the college campus at a high-risk security area. He was injured on the head by a stone thrown by an intruder when he went to investigate a noise at a neighbours residence at night. The National Court in awarding damages held that the employer failed in his duty to protect his employee from unnecessary risk by not taking reasonable care and reasonable measures to protect the plaintiff. The other two mentioned cases involved police shooting where the victims have died, as a result the plaintiffs sued the State for compensations. I do not consider these cases are relevant to the present case.

16. Under common law damages for tort of negligence depends on the proof of fault on the part of the defendant. That fault includes doing an act or omission without the knowledge or consent of the person injured. The test is the reasonable man test. That is whether the act done or omitted is something that a reasonable man would not have done or omitted. I have been unable to sight any case authority in our jurisdiction that could be relevant to the present cause of action. The case of Baupupu Arinuma –v- Likeman & The State [1976] PNGLR 200 may be relevant. In that case the plaintiff after the birth of her seventh child was operated for tubaligation at Goroka Base Hospital without her consent. Justice William held that the performance of the surgical operation upon a person without that person’s consent amount to an assault or trespass to that person. And awarded damages for the plaintiff. The point here is that the plaintiff did not give her consent.

17. In the present cause of action, the tag welding of the valve seat to the cylinder head was done by the defendants with the consent of the complainant. He was informed of the consequences of tag welding. He was told that tag welding was temporary in order for him to bring the vehicle to the workshop for proper repairs. Despite these warnings the complainant continued to operate the vehicle for a month until the problem re-occurred. Under those circumstances I find that the defendants could not be held negligence for tag welding the valve seat to the cylinder head.

18. Issue No 2: If the defendants are negligent, could the complainant claim damages for loss of business?

In answer to the Issue No. 1 above I have said that the defendants are not liable for negligence for the reasons that the repair works done on the complainant’s vehicle was carried out with his consent. Based on that finding the defendant’s are not negligent, and it will also be said that the complainant could not claim for any loss of business revenue.

19. The complainant claims loss of business revenue from the 29 October to the 16 November 2006 when the vehicle encountered the same mechanical problem and that it was off the road. He claims K10, 000.00 for the parts, labour and loss of revenue takings from the PMV operations. For the claims of expenses and loss of income in whatever form of manner, there must be some proof of such claims showing exact amount involved. It is not good enough to just claim any amount without proof. The complainant said that he secured a second hand cylinder head valued K1, 000.00 and engaged a mechanic who installed the part into his vehicle. He did not say how much he paid the mechanic for the job. He did not say his daily, weekly or monthly takings from his PMV operations. Mr. William Igo, the counsel for the defendant’s submitted that the complainant failed to provide evidence of his financial loss and expenses therefore the case should be dismissed. He relied on the decision in the case of Graham Mappa –v- PNG Electricity Commission Elcom [1995] PNGLR 170. In that case Justice Woods said that in the operations of a modern business world it is necessary to comply with the modern law such as producing records as required by the law like the tax law. That would show if there was any profit made over and above the running costs of the business. Where no proper business records and no returns are produced to the court to show if there was any profit made, the National Court found that there was no such loss and he dismissed the case. I do agree with Justice Woods that the claimant needs to produce business records in compliance to modern business practices for the court to be satisfied of such losses.

20. The only evidence established by the complainant is the valued of a second hand cylinder head for a sum of K1, 000.00. Other than that there is no evidence of a loss of business revenue nor the cost of the repairs done for this Court to be satisfied for a claim of K10, 000.00. I am satisfied that there is no negligence on the part of the defendants. Therefore the defendants cannot be held liable for any costs incurred on the repairs and or revenue loss of the business when the vehicle broke down again the second time after the defendants have tag welded the valve seat. Even if the defendants may be negligent, the complainant has failed to establish by evidence the damage of K10, 000.00 that he claims against the defendants. For the reasons given above I find the defendants not liable for damages in negligence. And I order that the case be dismissed and the defendants discharged with costs for the defendants.

Lawyer for the Complainant – In Person
Lawyer for the Defendants – Mr. William Igo, Principle Legal Officer of Ela Motors Ltd