|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 593 OF 2017
BETWEEN
JORKEN ASEMIABA
Plaintiff
AND:
RONALD THOMAS
First Defendant
AND:
IPI TRANSPORT LIMITED
Second Defendant
Lae: Numapo J
2020: 31st August & 18th September
CIVIL PRACTICE AND PROCEDURE – Trial on the question of liability - Assessment of damages (Order 10 Rule 17) if liability is established – Quantum of damages – Special and general damages – Plaintiff bears the onus to prove loss – Claim on losses must be corroborated – Plaintiff has a duty to mitigate loss – Plaintiff has not proven his losses – Nominal compensation awarded for loss of business.
Case Cited:
Abel Kopen v The State [1988-89] PNGLR 655
Graham Mappa v ELCOM (1992) N1093
Daniel Jifok v Kambang Holdings Ltd (2008) N3475
Daniel Occunga v Luke Kiliso (2010) N4102
Desmond Guasilu v Enga Provincial Government (2012) N4774.
Helen Jimmy v Paul Rookes [2012] N4705
Brown v MVIT [1980] PNGLR 409
Andrew Moka v MVIL (2004) SC 729
PNG Institute of Medical Research v PNGBC [1999] N1934
Roka Coffee Pty Ltd v Gerebi [1973] PNGLR 486
Wango v Andakundia & The State [1992] PNGLR 45
Waranunbo v Hyper Construction Ltd (2012) N4882
Rodao Holdings Ltd v Sogeram Development Corporation (2006) N5485
Kuk Kuli v The State (2004) N2529
Nane Ma v Gideon Bono & Hornibrook (NGI) Limited Unreported/ Unnumbered judgments dated 13th October 2014.
El Mangoth Co.Ltd v Jack Sarviman & Ors [2020] N8571
Jonathan Paraia v The State (1995) N1343
PNG Ports Corporation Ltd v Islands Salvage and Towage Ltd (2009) N3780.
Komaip Trading v George Waugulo and The State [1995] PNGLR 165
Kerekal Farming v Queensland [1995] PNGLR 401
Kinsim Business Group Inc. v Joseph Hompwafi & Ors v The State [1997] N1634
Marcus Mong v John Selou (2002) N2208
John Nuguwas v Peter Kopi, Anton Kaupa and Kuima Security Services [2014] N5504
Andrew Kewa v Johnny Lus and Securimax Ltd (2007) Unnumbered Judgment; WS415 of 2003 dated 14th March 2007
William Patitts for and on behalf of Sasaova Business Group v The State N3088.
National Capital District V Robert Dademo [2013] PGSC 37, SC126
Counsel:
Mr L Vava, for the Plaintiff
Mr S Kesno, for the Second Defendant
DECISION
18th September, 2020
1. NUMAPO J: This is trial on both liability and assessment for damages (O.10 r.17) arising out of a motor vehicle accident involving the plaintiff’s vehicle, a 25 –seater Toyota Coaster PMV bus registration no. P0878 and a Toyota Land Cruiser Station wagon registration no. LBH 528 owned by the second defendant and driven by the first defendant. The matter was dealt with partially when on the 21st August 2020 the Court ordered that judgment be entered for the Plaintiff in the sum of K44, 996.66 being for the pre-accident value of the bus to be paid by the second defendant’s Insurer, Southern Cross Assurance Limited. As regards to the claim on loss of income the court ordered that the matter proceed to trial hence, this proceedings.
2. The plaintiff is the owner of PMV Toyota Coaster bus driven by one, Neox Tama from Lae to Kainantu when the bus collided with the second defendant’s vehicle, a Toyota Land Cruiser Station wagon at 10 mile, along the Okuk Highway. The first defendant, Ronald Thomas was at the time an employee of the second defendant and was driving the Toyota Land cruiser station wagon when the accident happened on the 14th January 2014. As a result of the accident, both vehicles suffered extensive damages. The first defendant was arrested and charged and found guilty and convicted for negligent driving by the Lae District Court.
3. The plaintiff’s evidence is that he is the owner of the 25-seater Toyota Coaster bus that was involved in the accident with the second defendant’s vehicle. He relies on the conviction of the first defendant to pursue this claim on loss of earnings.
4. In his affidavit he stated that he operates on two routes. Route 1 is Kainantu – Lae - Kainantu and Route 2 Kainantu - Goroka - Kainantu. His bus runs Route 1 every Mondays, Tuesdays, Thursdays and Fridays and Route 2 on Wednesdays and Saturdays every week. He charges K20.00 each seat and makes K40.00 for a return trip on each of the route. In a week he makes approximately K4000.00 for Route 1 which is K40.00 x 25 seats x 4 days = K4000.00. For Route 2 he makes K2000.00 per week. The total amount per week for both routes is K6000.00 x 4 weeks = K24, 000.00 per month. As for the expenses the plaintiff spends a total of K9, 300.00 on salaries, fuel and maintenance including other administrative costs. His loan repayment to Credit Corporation Finance Ltd is K6, 860.00 monthly for the loan he obtained to purchase the bus. His total expenses per month is K16, 160.00. Subtract K16, 160.00 from the total monthly income of K24, 000.00 and he is left with net profit of K7, 840.00 per month.
5. Mr Vava for the plaintiff admitted however, that the figures the plaintiff came up with is only an estimate and does not reflect an accurate income for the reason that the plaintiff does not keep a proper business record on his PMV business. Counsel further submitted that apart from the plaintiff’s own evidence, there is no other evidence to independently corroborate and support the plaintiff’s evidence relating to his losses and asked the court to take a ‘liberal approach’ as opposed to the ‘strict approach’ and award a reasonable amount as nominal compensation for the loss of business and suggested K15, 000.00 per month. Mr Vava asked the court to consider a period of more than 6 months but less than 12 months upon which to calculate the loss and suggested that a period of 10 months is reasonable in the circumstances of this case. The plaintiff therefore, claims a total sum of K150, 000.00 as compensation for loss of earnings.
6. In his affidavit, Mr Maso Mangape, General Manager of the second defendant - IPI Transport Ltd stated that according to his assessment the plaintiff’s driver also contributed to the collision through his own negligence by failing to slow down at the “Slow Down” sign some 30 metres before the 10 Mile market. He further stated that the plaintiff’s driver jumped out of the bus after realizing that a collision was imminent resulting in him losing control of the bus which then bumped into the other vehicles parked in front.
7. Mr Mangape also told the court that he had not authorized the first defendant to drive the company’s vehicle on the day in question and that the first defendant was not driving within the scope of his employment when the accident happened as he went to look for betelnuts at the market and not doing an official business run at the time. For this reason, the second defendant denied been vicariously liable for the acts and/or omissions of its employee, the first defendant.
8. With respect to loss of earnings, Mr Kesno for the defendants submitted that there is no independent evidence to corroborate the plaintiff’s claims on his loss of earnings. There is also no credible evidence to support the assertion made by the plaintiff that he was earning a gross income of K24, 000.00 per month and a net income of K7, 840.00 per month after expenses from his PMV business. Counsel further submitted that it is also the plaintiff’s own admission that the figures he provided is merely an estimate and not corroborated or supported by any other evidence. This in itself should be reason enough for the court to reject the claim as there is simply no basis for it.
9. Mr Kesno further submitted that the bank statement (Annexure ‘F’) tendered into evidence by the plaintiff does not help his case at all for the reason that it only showed a total deposit made of K9, 720.00 into his BSP account between June and December 2013, a period of 7 months only. Divide K9, 720.00 by 7 months and it gives you K1, 388.57 as income per month and not K24, 000.00 as claimed. If anything, plaintiff is only entitled to K1, 388.57 per month. Apart from the bank statement, plaintiff did not produce any financial statements or tax returns to support his evidence of his earnings. Plaintiff is not a registered tax payer with the Internal Revenue Commission (IRC) and has never filed annual tax returns or GST returns nor paid any income tax or GST tax. The tax returns would have amounted to an independent corroboration of his business income.
10. Counsel further submitted that the plaintiff bearing the onus, has not proven his losses and therefore, should not be awarded any damages for loss of earnings. However, should the court wish to order damages for loss of income, damages should be restricted to a reasonable period it would have taken the plaintiff to effect repairs or organize replacement of the bus. Mr Kesno suggested a period ranging from 3 weeks to 13 weeks as reasonable. Counsel cited the following cases to support his argument relating to the question regarding reasonable period: - Abel Kopen v The State [1988-89] PNGLR 655 and Graham Mappa v ELCOM (1992) N1093. See also: Daniel Jifok v Kambang Holdings Ltd (2008) N3475; Daniel Occunga v Luke Kiliso (2010) N4102 and Desmond Guasilu v Enga Provincial Government (2012) N4774. In these cases, the Courts held that, award on losses should be limited to only 3 months of income which is considered a reasonable period.
11. In their Statement of Agreed and Disputed Facts the parties agree to certain facts that are not in dispute as follows:
(i) Plaintiff is the owner of the PMV bus and the second defendant was the owner of the Toyota Land cruiser station wagon that were involved in the accident.
(ii) The first defendant was, at the material time, an employee of the second defendant.
(iii) Both vehicles suffered extensive damages following the collision as a result of which the plaintiff’s bus was put out of operation.
(iv) The first defendant was found guilty for negligent driving and convicted by the District Court.
12. The issues for trial are:
(i) Whether or not the first defendant was negligent and therefore, is liable to suffer damages?
(ii) Whether or not there was contributory negligence on the part of the plaintiff’s driver?
(iii) Whether or not the second defendant is vicariously liable for the actions and/or omissions of the first defendant under a master-servant relationship?
(iv) Whether or not the plaintiff is entitled to damages and if so, how much?
(i) Negligence
13. The first issue is: Whether or not the defendants were negligent and therefore, liable to suffer damages.
14. Although the first defendant was already found guilty and convicted for negligent driving by the District Court as alluded to above, principles of law emanating from recent case laws requires that even if the defendant has been convicted by the criminal court on negligence it does not relieve the plaintiff of his obligation to prove negligence in a civil proceedings. On this, I adopt and apply the views expressed by Cannings J in Helen Jimmy v Paul Rookes [2012] N4705 where his Honour stated that:
“......Proof of a defendant’s conviction of a traffic offence in earlier criminal proceedings does not relieve a plaintiff in subsequent civil proceedings of the onus of proving that the defendant drove negligently. Proof of conviction is one thing. Proof of the elements of a cause of action in subsequent civil proceedings relating to the same events that led to the conviction is another. This raises the question of weight to be attached to evidence of the conviction.”
15. Plaintiff bears the onus to prove negligence in this civil proceedings and is required to discharge that burden upon the balance of probabilities.
16. On negligence, Counsel for the plaintiff, Mr Vava submitted that there is overwhelming evidence against the first defendant for being negligent with his driving that resulted in the collision with the plaintiff’s bus. Plaintiff relies on the evidence of Evelyn Wai (Exhibit ‘EW1’) a passenger in the bus, the evidence of Neox Tama (Exhibit ‘NT3’) the driver of the bus and the plaintiff himself, Jorken Asemiaba, owner of the bus (Exhibit ‘JA2’).
17. The evidence clearly showed that the plaintiff’s bus was on its correct lane travelling up towards Nadzab from Lae along the Okuk Highway when at 10 Mile, the first defendant who was parked on the right side facing towards Lae all of a sudden did a U-turn and drove onto the opposite lane causing his vehicle to bumped the plaintiff’s bus on its right side. The first defendant was arrested and charged for negligent driving and was found guilty and convicted by the District Court.
18. Plaintiff’s evidence on negligence was not challenged nor was there any evidence that his conviction on negligent driving was overturned on appeal. Plaintiff relies on the conviction to support his claim that the first defendant was negligent. Defendants did not dispute the conviction registered at the District Court. A Certificate of Conviction was also tendered into evidence without objection which I take as further proof of the conviction.
19. Based on that, I am satisfied that the first defendant was negligent in his driving that caused the collision with the plaintiff’s bus and therefore, is liable to suffer damages.
(ii) Contributory Negligence
20. The second issue is; Whether or not the plaintiff’s driver was contributory negligent in causing the accident by travelling at a high speed and failing to slow down?
21. Defence generally raised the defence of contributory negligence in that the plaintiff’s driver contributed to the accident and was at fault and therefore, blame should be apportioned equally between the plaintiff and the defendants. Contributory negligence is a defence in any actions based on negligence. The principle applies where a defendant has been found liable. See: Brown v MVIT [1980] PNGLR 409 & Helen Jimmy v Paul Rookes (supra).
22. Section 40 (1) of the Wrongs (Miscellaneous Provisions) Act recognizes contributory negligence as a defence. It states:
“....where a person suffers damage as a result partly of his own fault and partly of the fault of any other person, a claim in respect of the damage shall not be defeated by reason of the fault of the person suffering the damage, by the damage recoverable in respect of it shall be reduced to such extend as the Court thinks just and equitable, having regard to the claimants’ share and responsibility for the damages.”
23. The onus of proving contributory negligence rests with the party relying on it. See: Andrew Moka v MVIL (2004) SC 729; PNG Institute of Medical Research v PNGBC [1999] N1934 and Helen Jimmy v Paul Rookes (supra).
24. In the present case, the only evidence on contributory negligence came from Mr Maso Mangape the General Manager of the second defendant. At paragraph 7 of his affidavit, he stated that he arrived at the scene shortly after the accident. From his assessment the plaintiff’s driver must have been travelling at a high speed when the accident happened. He failed to take heed of the Slow Down sign at the particular section of the road. Had he not been speeding the accident would have easily been avoided or that the impact caused would have been less severe than as experienced. Given this, the plaintiff’s driver was contributory negligent in causing the accident by travelling at a high speed and therefore, blame should be apportioned.
25. Mr Mangape further stated that the plaintiff’s driver on realizing that a collision was imminent jumped out of the bus and lost control of it resulting in the collision that caused a domino effect with other vehicles parked in front. Had he stayed in the bus he would have steered it clear to avoid further collision with other vehicles parked there at the time. However, according to the evidence given by the plaintiff’s driver Neox Tama and passenger Evelyn Wai, the second defendant’s vehicle crashed onto the right side door of the plaintiff’s bus where the driver was seated and therefore, it was not possible for the driver to jump out and exit the bus on the right hand side. I tend to agree with the plaintiff’s version of events as it makes a lot of sense to me.
26. I find Mr Mangape’s evidence on the collision largely unsubstantiated and uncorroborated and not supported by any tangible and credible evidence to give it credence. He arrived late at the scene of the accident and is not an eye witness. His evidence is mostly hearsay and based on his own opinion on what may or may not have happened at the time. He is not a credible and reliable witness to be believed. The defendants have not proven contributory negligence. I find therefore, that plaintiff’s driver was not contributory negligent.
(iii) Vicarious Liability
27. The third issue is; Whether or not the second defendant is vicariously liable for the actions and/or omissions of the first defendant.
28. The plaintiff pleaded vicarious liability against the second defendant in his statement of claim. Parties agreed and evidence has established that the first defendant was driving the vehicle owned by the second defendant in his capacity as its employee when the accident happened.
29. The principles of vicarious liability is well settled in this jurisdiction on master -servant relationship. Manuhu J, in adopting the common law meaning of vicarious liability in Kuk Kuli v The State (2004) N2529, said that:
“A master is saddled with the responsibility to a third party in the event of his servant committing a tort in the course of his employment. The servant himself is also liable and he and his master are joint tortfeasors, though in practice it is the master who is sued since he is better able to pay the damages. For vicarious liability to arise three things have to be established; (i) a master-servant relationship; (ii) the servant committed a tort; and that he did so in the course of his employment.”
30. In Omonon v Kuanga (2012) N4686, Cannings J described the principles in this way:
“Vicarious Liability is liability that falls on one person as a result of acts or omissions of another person with whom the first person is in a special relationship. Employers are in a special relationship with their employees and will be liable vicariously, for the wrongful acts or omissions of their employees that are committed within the scope of their employment.”
Also see: Roka Coffee Pty Ltd v Gerebi [1973] PNGLR 486; Wango v Andakundia & The State [1992] PNGLR 45.
31. The second defendant denies that it is vicariously liable for the actions of the first defendant. According to Mr Mangape the first defendant had not sought permission from him and was not authorized to drive the company vehicle and was not driving in the course of his employment at the material time when the accident happened and therefore, the second defendant is not vicariously liable for the actions of the first defendant. He however, did not produce any evidence to support the assertion that the first defendant was not authorized to drive and secondly, that he drove outside of the scope of his employment when the accident happened.
32. I find this argument rather shallow for the reason that; firstly, it has not been disputed that the first defendant was employed as a driver with the second defendant when the accident happened. Secondly, the second defendant has not produced to the court a vehicle log book or a vehicle movement record of some sort to prove that the particular run made on the day in question was not authorized. Thirdly, there is no evidence to suggest that the first defendant went on a frolic when the accident happened. Moreover, the accident happened during working hours and within the close proximity of the second defendant’s place of business at their 11 Mile yard, Lae along the Okuk Highway.
33. Needless to say, the first defendant by virtue of his employment as a driver is required to drive. It is not really necessary therefore, for him to get permission every time he drives out to do his daily errands. It is an unrealistic expectation and practically impossible to do every single day.
34. Based on these facts, I am satisfied that the negligent act was committed in the ordinary course of the first defendant’s employment with his employer, the second defendant. At the time of the accident there existed a master-servant relationship between them - Roka Coffee Pty Ltd v Gerebi (supra).
35. The second defendant is therefore vicariously liable for the negligence of the first defendant and accordingly, is liable to suffer damages.
36. All in all, I find that liability has been established and the plaintiff is entitled to damages.
37. I now address the quantum to be assessed in the trial on assessment of damages.
38. In his Statement of Claim, the Plaintiff claims the following:
(i) Special damages
(ii) General damages
(iii) Interests
(iv) Costs
39. The issue here is; Whether or not the plaintiff is entitled to any damages and if so, how much is he entitled to in monetary terms. These two issues may be dealt with together.
40. The general principles in assessment of damages is that the claimant is entitled to full compensation of his or her losses once liability is established. The precise quantum to be paid to the plaintiff by the defendant is to be assessed in the trial on assessment on damages. See: Waranunbo v Hyper Construction Ltd (2012) N4882; Jifok v Kambang Holdings Ltd t/a Lutheran Shipping (2008) N3475; and Rodao Holdings Ltd v Sogeram Development Corporation (2006) N5485.
(a) Special Damages
41. For special damages, plaintiff claims two losses; firstly, for the damage caused to the bus in the sum of K109, 540.00 and secondly, for loss of earnings in the sum of K150, 00.00. However, the claim relating to the bus has already been settled by the second defendant’s Insurer, Southern Cross Assurance Ltd when it made a payment K44, 996.66 based on the pre-accident value of the bus by an order of the Court. The second defendant has also given the plaintiff K20, 000.00 as a gesture of good-will to compensate for the damages caused to the bus. The total amount paid so far to the plaintiff for the damages caused to his bus is K66, 996.66. Therefore, the plaintiff is not entitled to any further payment in respect of the claim relating to the bus. This hearing on assessment of damages will only deal with the second aspect of the claim that relates to loss of earnings.
42. One of the principles of law regarding loss of earnings is that the plaintiff must prove his actual loss. He must show through evidence the losses he suffered. Mere speculations or assumptions on losses suffered or likely to be suffered is not good enough. A good number of case laws have established these principles of law which requires sufficient proof on losses, the burden of which is on the claimant. See: El Mangoth Co.Ltd v Jack Sarviman & Ors [2020] N8571; Jonathan Paraia v The State (1995) N1343; PNG Ports Corporation Ltd v Islands Salvage and Towage Ltd (2009) N3780.
43. On loss of earnings, the details of which is stated above, the plaintiff claimed that he was earning a gross income of K24, 000.00 per month before the accident. Less the expenses of K9, 300.00 on salaries, fuel and maintenance including his monthly loan repayment of K6, 860.00, his total expenses per month is K16, 160.00. Subtract K16, 160.00 from the total monthly income of K24, 000.00 and he is left with a net profit of K7, 840.00 per month. Plaintiff admitted however, that the figures are not the exact income but only an estimate. Plaintiff asked the court to consider awarding a nominal compensation for his loss and suggested 10 months to be a reasonable period for the loss. He further suggested K15, 000.00 per month as nominal compensation which would bring the total to K150, 000.00 for the 10 months period and ask that this amount be awarded as compensation for loss of earnings. Defendants on the other hand submitted that a period of 3 months is considered reasonable period of time to fix or find a replacement for the asset as held in a number of case laws - Abel Kopen v The State; Graham Mappa v ELCOM and Daniel Jifok v Kambang Holdings Ltd (supra).
44. Nonetheless, I find several things unfavorable to the plaintiff’s claim. Firstly, he has not provided any evidence that independently corroborated his own evidence on loss of earnings. He is required to prove actual loss, not to speculate on it. Secondly, the bank statement (Annexure ‘F’) tendered as evidence only showed a total deposit of K9, 720.00 made into his account over a period of 7 months (June to December 2013) which is K1, 388.57 per month. So, where did the K15, 000.00 per month come from? It certainly didn’t come from the little mathematical exercise the plaintiff did (above) in calculating his losses and thirdly, he has not shown why he suggested 10 months as a reasonable period to calculate his loss and on what basis and under what principles of law to support the proposition.
45. Plaintiff has also not provided any tax returns to support his claim on earnings from his PMV business. The tax returns would have amounted to an independent corroboration of his income including net profit. As it appears, the plaintiff is not a registered tax payer and has never filed any tax returns. A good number of case law precedents have established that the plaintiff’s own evidence on losses that is not supported by independent corroborating evidence such as bank statements, financial statements or tax returns, like in the present case, is insufficient. See: Komaip Trading v George Waugulo and The State [1995] PNGLR 165; Kopen v The State [1988-89] PNGLR 659; Kerekal Farming v Queensland [1995] PNGLR 401; Kinsim Business Group Inc. v Joseph Hompwafi & Ors v The State [1997] N1634 and Marcus Mong v John Selou (2002) N2208.
46. Finally, there are also some unknown factors and contingencies that might affect the income from the PMV bus that the plaintiff has not included in his claim, such as for example; the bus might be in the workshop to undergo maintenance and repairs or a routine service that might put it off the road for a few days or even weeks which means that revenue will be affected during this down-time. Furthermore, there is no guarantee that the bus will be packed to capacity every time it runs let alone generating the kind of income claimed by the plaintiff. There is also the common problem of stealing of bus fares by the driver and the bus crew that is rampant within the PMV industry. With no proper ticketing system or record of payments, money is bound to go missing which will ultimately affect the income generation from the bus. All these are reasonable inferences and for which allowances must be made for. See: Nane Ma v Gideon Bono & Hornibrook (NGI) Limited Unreported/ Unnumbered judgments dated 13th October 2014.
47. All in all, I find the plaintiff’s evidence on loss of earnings uncorroborated, unsubstantiated and not supported by any independent credible evidence to be believed. Even moreso, the amount claimed is outrageously too high and not supported by any facts and also does not appeal to logic. For instance, it is difficult to accept the proposition that a single PMV bus is capable of generating a gross income of K24, 000.00 per month. There is no evidence whatsoever to back this claim up. As I said in the past in similar cases, a claimant should not come to court to profit from his losses with unrealistic and outrageous claims such as this. It is an outright abuse of the Court’s process to do so and those found to be doing that can expect their claims to be thrown out even before it starts. See: El Mangoth Co.Ltd v Jack Sarviman & Ors (supra).
48. Mr Vava asked the court to take a ‘liberal approach’ in assessing the losses in the absence of any corroborating and supporting evidences and make a nominal or general assessment of losses as the Court considers proper and reasonable in the circumstances of this case and award some nominal compensation for the loss suffered. There are a number of case laws that have taken this position. See for example: Andrew Kewa v Johnny Lus and Securimax Ltd (2007) Unnumbered Judgment; WS415 of 2003 by Manuhu J dated 14th March 2007; William Patitts for and on behalf of Sasaova Business Group v The State N3088.
49. Counsel further submitted that the fact that damages cannot be assessed with certainty does not relieve the wrong-doer of the necessity of paying damages. Where precise evidence is available the Court expects to have it. However, where it is not, the Court must do the best it can to assess the loss – Per Injia J (as he then was) in Jonathan Paraia v The State (supra).
50. Cannings J summarized well the liberal approach in John Nuguwas v Peter Kopi, Anton Kaupa and Kuima Security Services [2014] N5504 as follows:
“If a defendant causes damages 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 (Able 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, necessary, 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 Paraia v The State (1995) N1343; Misac Pokonoming v Jeffrey Simiri (2007) N4978 and Desmond Guasilu V Enga Provincial Government (2012) N4774).”
51. Having found that the plaintiff is not entitled to any damages because he has not proven his losses effectively brings the claim to an end. However, according to the undisputed facts, the plaintiff no longer runs his PMV business after the accident. The bus has been written off and is road unworthy. All these happened through no fault of his own with liability been established against the defendants for their negligence. Notwithstanding the fact that the plaintiff has not proven his losses does not relieve the defendants of any liability. The accident has effectively put the plaintiff out of business. It is only fair that he be awarded some nominal compensation for his loss of earning that is reasonable in the circumstances of his case. Again, where precise evidence on losses is not available or forthcoming the court must do its best to assess the loss on whatever the evidence that is already before it. I adopt and apply the views expressed in John Nuguwas v Peter Kopi & Ors and Jonathan Paraia v The State (supra) and considered it appropriate that the plaintiff is awarded some nominal compensation for his losses in the absence of any evidence that independently corroborated his losses.
52. One of the principles in assessment of damages is that a person who suffers personal injury through no fault of his own, has an obligation to take necessary steps to avoid further losses. In otherwords, the Plaintiff has a duty to mitigate his loss and must therefore, take all appropriate steps to lessen the impact of the loss and suffering. See: Golden Valley Transport v Dekenai Construction Limited [2019] N8377.
53. Although, Counsels have not raised this point in their respective submissions, I considered it necessary for purposes of completeness to raise it. It appears to me that the plaintiff has not taken any steps to mitigate his loss. He received a total sum of K64, 996.16 from the second defendant comprising K44, 996.16 from the second defendant’s insurer, Southern Cross Assurance Ltd and a good-will assistance of K20, 000.00 from the second defendant. Having received the payments, one would expect that the plaintiff takes necessary steps to either repair the bus or buy a new bus whichever, is easiest and more convenient to him financially. He has not done so. According to plaintiff’s own evidence the bus is still sitting in the second defendant’s workshop and he expected them to fix the bus. However, the money needed to fix the bus has already been paid to him so it is up to him to fix the bus and he should not be expecting the second defendant to fix it for him. Plaintiff should not rest on his laurels and do nothing to mitigate his loss. It does not advance his claim if he does so.
54. I award the following:
(i) General Damages
55. For general damages, I award the plaintiff K5, 000.00 for suffering and hardship. I considered this amount as reasonable in the circumstances.
(ii) Special Damages
56. For special damages, all things considered, I award a global sum of K16, 000.00 as nominal compensation for loss of business and income.
(iii) Interests
57. The principles of awarding interests is stated by the Supreme Court in National Capital District v Robert Dademo [2013] PGSC 37, SC126. I award interest at the rate of 8% on the total judgment sum of K16, 000.00 from the date of the filing of the Writ to today, a total of 3 years, in the sum of K3, 840.00.
(iv) Costs
58. Defendants shall pay the plaintiff’s taxed costs.
59. In summary, I award the plaintiff the following:
(a) General damages for suffering and hardship – K5,000.00
(b) Loss of earnings in a form of nominal compensation considered reasonable – K16,000.00
(c) Interest – K3, 840.00.
(d) Grand Total: K24, 840.00
60. Judgment is entered for the plaintiff against the defendants in the sum of
K24, 840.00.
Orders Accordingly
________________________________________________________________
Luke Vava Lawyers: Lawyers for the Plaintiff
Kesno Lawyers: Lawyers for the Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/365.html