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Bafor v Kilane [2013] PGNC 199; N5444 (13 December 2013)

N5444

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 503 OF 2008

CHARLES KLAKAL BAFOR
Plaintiff

V

SAMUEL KILANE
Defendant

Madang: Cannings J
2013: 25 October, 6, 13 December

DAMAGES – negligence – assessment of damages after trial on liability – motor vehicle accident – damages claimed for vehicle repairs, special damages, business losses and pain and suffering.

The plaintiff at an earlier trial established a cause of action in negligence against the defendant arising from a collision between a vehicle owned by the plaintiff and a vehicle driven by the defendant. At a trial on assessment of damages the plaintiff claimed three heads of damage: (1) cost of repairs, K36,766.82; (2) loss of income, K240,000.00; and (3) special damages, K5,000.00; a total claim of K281,766.82.

Held:

(1) Damages assessed were: value of the vehicle before it was damaged, K21,000.00; loss of business, K16,000.00; special damages, 0; a total award of K37,000.00.

(2) In addition, interest was awarded at the rate of 8% per annum on the total amount of damages for the period between the date on which the cause of action accrued to the date of judgment, the amount of interest being K31,524.00, making a total judgment sum of K68,524.00.

Cases cited

The following cases are cited in the judgment:

Abel Kopen v The State [1988-89] PNGLR 655
Daniel Jifok v Kambang Holdings Ltd (2008) N3475
Daniel Occungar v Luke Kiliso (2010) N4102
Desmond Guasilu v Enga Provincial Government (2012) N4774
Graham Mappa v ELCOM (1992) N1093
Jonathan Mangope Paraia v The State (1995) N1343
Misac Pokonoming v Jeffery Simiri (2007) N4978
Samuel Roth v Samuel Waironak (2011) N4452

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for negligence.

Counsel

D F Wa'au, for the plaintiff
B Tabai, for the defendant

13th December, 2013

1. CANNINGS J: This is an assessment of damages for negligence. The plaintiff Charles Klakal Bafor succeeded at an earlier trial in establishing liability against the defendant Samuel Kilane, arising from a collision between a Toyota Hiace PMV bus owned by the plaintiff and another Toyota Hiace bus owned by the defendant. The collision occurred on 19 April 2003 at Boko Bridge on the Bruce Jephcott Highway.

2. Mr Wa'au for the plaintiff originally submitted that the plaintiff should be awarded three heads of damage: (1) total cost of damages caused to the PMV bus, K39,766.82 minus K3,000.00 paid already by the defendant = K36,766.82; (2) loss of business, K240,000.00; (3) special damages, K5,000.00; plus costs, K10,050.00; a total claim of K291,816.82. When I pointed out that the amount of the loss of business claim seemed to be exaggerated and had little prospect of success, Mr Wa'au withdrew that part of his submission and left it to the discretion of the court to fix a more moderate sum.

1 REPAIRS

3. The plaintiff has adduced evidence of quotes from two motor vehicle repairers, the amounts being K21,000.00 as the value of the vehicle before it was written-off due to the accident and K39,766.82 being the total repair cost quoted by Ela Motors. As the vehicle was a write-off, I will, as I did in Samuel Roth v Samuel Waironak (2011) N4452, award the amount quoted as the value of the vehicle before it was involved in the accident: K21,000.00.

2 BUSINESS LOSSES

4. If a defendant causes damage to a plaintiff's profit-earning asset, the plaintiff is entitled to damages to compensate him for profits lost during the period that is reasonable to repair the asset (Abel Kopen v The State [1988-89] PNGLR 655). Ideally the plaintiff should provide an audited set of accounts to verify his claim. However, if that evidence is not forthcoming, it does not follow, necessarily, that the plaintiff will be awarded nothing. The court will do the best it can on the evidence that is available (Graham Mappa v ELCOM (1992) N1093, Jonathan Mangope Paraia v The State (1995) N1343, Misac Pokonoming v Jeffery Simiri (2007) N4978, Desmond Guasilu v Enga Provincial Government (2012) N4774).

5. There were two serious problems with the original claim of K240,000.00. First, there is no set of accounts, audited or unaudited, to verify the figures. Secondly, the period to repair the vehicle was excessive. Any prudent PMV operator will ensure that their vehicle is covered by comprehensive motor vehicle insurance, which will significantly reduce the risk of it being off the road for a long period if it is involved in an accident. I will assess lost profits at a nominal figure of K4,000.00 per month taking into consideration that the PMV operated the Madang to Lae route. As for a reasonable period to effect repairs or organise a replacement vehicle I have looked at what Woods J allowed in the Kopen and Mappa cases (three weeks and 13 weeks respectively) and what I have allowed in similar cases, Daniel Jifok v Kambang Holdings Ltd (2008) N3475, Daniel Occungar v Luke Kiliso (2010) N4102 and Desmond Guasilu v Enga Provincial Government (2012) N4774 (three months in each), and compared the facts of this case with the facts in those cases. I will allow a period of four months. The amount of business losses is K4,000.00 per month x 4 months = K16,000.00.

3 SPECIAL DAMAGES

6. This is a nebulous claim, unsupported by particulars or any credible evidence. Nothing is awarded.

SUMMARY OF DAMAGES ASSESSED

Cost of repairs: K21,000.00
Loss of income: K16,000.00
Special damages: 0
Gross = K37,000.00.

INTEREST

7. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 19 April 2003, to the date of this judgment, a period of 10.65 years, by applying the formula D x I x N = A, where:

• D is the amount of damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus K37,000.00 x 0.08 x 10.65 = K31,524.00.

COSTS

8. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. However, in this case the plaintiff made an exaggerated and unjustified claim for business losses, which was belatedly abandoned. In these circumstances I will allow the parties to bear their own costs.

ORDER

(1) The defendant shall pay to the plaintiff damages of K37,000.00 plus interest of K31,524.00, being a total judgment sum of K68,524.00.

(2) The parties will bear their own costs.

(3) Time for entry of the judgment is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
__________________________________
Meten Lawyers: Lawyers for the Plaintiff
Tabai Lawyers: Lawyers for the Defendant