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Tovatnge v Ngatia Enterprises Ltd [2016] PGNC 251; N6446 (21 September 2016)

N6446

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1094 OF 2012

BETWEEN:

BERNARD TOVATNGE
Plaintiff

AND:
NGATIA ENTERPRISES LIMITED
First Defendant

AND:
ANDREW ARNOLD
Second Defendant

Kokopo:Higgins, J
2015: 6^th November
2016: 21^st September

Assessment of Damages – Motor vehicle accident – repairs to vehicle – reasonable time therefor - personal injury to passenger not allowable – demurrage for loss of profitable use of vehicle including hire of alternative vehicle

Cases Cited:

Koimo v State [1995] PGNC 67; N1322

Lappalanen v Gregory [1968] PGSC 5

PNG Aviation Services v Karri [2009] PGSC 24

Counsel:

Mr. N. Motuwe, for the Plaintiff
No appearance ,for the Defendants

DECISION

21^st September, 2016

1. HIGGINS, J: This is an assessment of damages following default judgment entered on 29 July 2013 by Lenalia, J (ex parte).
   
2. The matter first came before me on 17 June 2015. Both parties had shown a lack of diligence in bringing the matter on for determination of damages.
   
3. It has to be acknowledged that, on the facts as alleged and deposed to by the plaintiff the negligence of the defendants and damage resulting there from to the plaintiff is plainly established. The corporate defendant was the registered owner of the vehicle negligently driven by the second defendant, an employee of the first defendant. It follows that liability was rightly conceded.
   
4. The damage sustained was suffered immediately so far as damage to the vehicle is concerned, that is, on 19 November 2011.
   
5. On 8 October 2014 the plaintiff filed an affidavit in support of his claim for damages.
   
6. The repairs to the Ford Ranger cost K20,989.55. The plaintiff had to hire a replacement vehicle for 4 days per week to service customers.
   
7. The plaintiff’s lawyer swore an affidavit setting out the claim. Strictly speaking, insofar as it went beyond the plaintiff’s affidavit, it was hearsay.
   
8. However, the plaintiff, on 28 September 2015, did file a submission on damages. The defendants have not offered any contrary submissions.
   
9. The first part of the submission asserts, effectively, that the Ranger was an asset of Mesu Investment Limited, a corporate vehicle for local tribes running businesses, primarily cocoa and cocoa plantations, and an accommodation facility at Rabaul. It is apparent that the plaintiff sues not on his own behalf but on behalf of Mesu Investment Limited.
   
10. The cost of repairs was K20,989.55. Of course, the true measure of damages is the diminution in value of the vehicle. That was not made the subject of evidence. However, given the description of the vehicle, it is able to be concluded, as a matter of probability, that the pre-accident value of the vehicle exceeded this sum.
    
11. Whilst demurrage is loss of earnings whilst the vehicle is off-road is allowable, it can only be for the period necessitated by the repairs to the vehicle.
    
12. No evidence was adduced to explain the 180 days claimed. The court, therefore, has to estimate a reasonable time. That, to my mind, is allowable at 21 days i.e. K6, 040.00.
    
13. There is a claim for exemplary damage and distress to the plaintiff’s wife.
    
14. There is nothing in the circumstances which would warrant an award of exemplary damages. Such were not claimed in the Statement of Claim. Rather, it claimed “embarrassment of driving a defective vehicle”.
    
15. In PNG Aviation Services v Karri [2009] PGSC 24, the Court, Cannings, Gabi and Ellis JJ, observed that exemplary (or punitive) damages are only to be awarded in the case of contumelious disregard of the plaintiff’s rights. See Koimo v State [1995] PGNC 67; N1322.
    
16. That case referred to actions that are “oppressive, arbitrary or unconstitutional”.
    
17. That description does not apply to a simple traffic accident. ‘Malicious or deliberate’ was the touchstone adopted by Mann CJ in Lappalanen v Gregory [1968] PGSC 5.
    
18. There is a further claim, though not accompanied by any amendment to the Statement of Claim, for distress to Mrs. ToVatnge.
    
19. That is, in any event, misconceived. It is a claim for personal injury, ie mental distress. She is not a party to these proceedings.
    
20. It follows that the total to be awarded is K27, 679.55 plus interest at 8% plus costs, to be taxed if not agreed. Interest is to accrue as from 10 December 2011 (21 days after the accident when the claim had crystallised).
    

____________________________________________________________
Motuwe Lawyers: Lawyer for Plaintiff
No appearance : Lawyers for the Defendants