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Kopen v State [1989] PGNC 50; [1988-89] PNGLR 659; N779 (30 October 1989)

N779

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KOPEN

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen
Woods J
19 September 1989
30 October 1989

DAMAGES - Measure of - Property damage - Motor vehicle damaged in accident - Repairs not effected - Hire purchase running in arrears - Repossession - Claim for loss of vehicle - Damages limited to cost of repairs and reasonable loss of profits - Repossession not foreseeable.

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.

Held

(1) The damages recoverable were limited to the cost of repairs and the loss of profits for a period sufficiently reasonable to effect repairs.

(2) Repossession was not to be regarded as a reasonable consequence of the damage.

(3) The plaintiffs duty to mitigate his loss required him to take appropriate steps to get the repairs done efficiently and without unreasonable delay.

Statement of Claim

This was an action for damages for loss of a motor vehicle allegedly caused by the negligence of the defendant.

Counsel

D L O’Connor, for the plaintiff.
B V L Ninai, for the defendant.
Cur adv vult

30 October 1989

WOODS J: This is a claim for damages for the loss of the plaintiffs public motor vehicle (PMV) following it being struck while stationary by a vehicle owned by the defendant on 12 June 1987.

Liability is admitted by the defendant and this case has therefore come on for hearing as an assessment of the damages.

The vehicle concerned was a 25-seater bus purchased by the plaintiff in May 1986 for just over K25,000. The plaintiff paid over K12,000 as part payment for the vehicle and the balance was to be paid by instalments under a finance agreement with Nambawan Finance Ltd. It would appear that any insurance held by the plaintiff over the vehicle was arranged through Nambawan Finance Ltd to protect its hire purchase agreement over the vehicle.

Immediately following the damage to the vehicle, the plaintiff reported the incident to Nambawan Finance Ltd which apparently asked him to obtain quotes for the damage. A quote from Ela Motors was obtained for the sum of K5,222.90 and this quote has been produced to this Court. The plaintiff states that his vehicle was towed to the premises of Nambawan Finance agent, namely the Papua New Guinea Banking Corporation, and nothing then appears to have been done to get the vehicle repaired. Meanwhile, instalment payments were due and as such payments depended on the plaintiff being able to use the vehicle and earn income from it, he was unable to make some payments when due and in due course Nambawan Finance repossessed the vehicle and sold it.

The plaintiff is claiming the complete loss of the vehicle from the defendant as the consequential loss of the vehicle to him can be attributed to the actions of the defendant.

The basic rule in damages for negligence is that the measure of damages in the case of damage to a 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: see Halsbury’s Laws of England (4th ed), vol 34, par 88 at 72 and cases noted therein. A further ruling in connection with the loss of a profit-earning chattel is that, where a chattel used by a plaintiff in the course of his business is damaged or destroyed, the plaintiff is entitled to loss of profits during a reasonable period to effect repair: see Halsbury, par 89 at 73.

In the case before me, I see no problems in assessing the nature of damages based on the rules above, namely, the quote from Ela Motors to repair the vehicle and an allowance, for a reasonable time, for loss of profits.

However, the plaintiff is saying that, in effect because of the damage to the vehicle, the plaintiff had his vehicle repossessed. However, I fail to see how the repossession can be a reasonable consequence of the damage. The plaintiff is supposed to mitigate his damages and in this case this would include taking appropriate steps to get the repairs done efficiently and without any unreasonable delay. Instead, however, the defendant left everything to his finance company which, it would appear, was grossly careless, even negligent, in looking after the interests of its client. However, why should the defendant pay for the consequences of the careless or negligent financial arrangement of the plaintiff? The defendant is entitled to assume that the plaintiff will take the appropriate steps to repair his vehicle and the defendant cannot be liable for the consequent failure of the plaintiff to act reasonably.

I find no rule of law which makes the defendant liable for any more than K5,222.90 plus interest plus some loss of profit which, in this case, I would allow for a period of three weeks.

With respect to loss of profits, the figures are rather general. However, averaging out the figures presented on a six-day-week basis for three weeks, I would assess the amount of K1,600 for average earnings for one week and perhaps the cost of fuel and salary and depreciation and service and wear and tear could come to about K900. Therefore loss of profits would be in the area of K700 per week and I note that it was out of these profits that the plaintiff was making his term payments. I would therefore allow for three weeks loss of profit at K700 per week.

To summarise:

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Lawyer for the plaintiff: D L O’Connor.
Lawyer for the defendant: State Solicitor.