N10393

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 331 OF 2014

BETWEEN
JOHN PALARU
Plaintiff

AND
MICHAEL KAULE
Defendant

Mount Hagen:  Collier J
2023:  6th July

CIVIL – Negligence – Loss and Damages – where plaintiff claimed loss and damages suffered from a collision – legal principles of liability – legal principles of assessment of damages.

The plaintiff sought damages suffered from a collision between his Toyota Hiace PMV and the defendant’s Dyna truck outside Mount Hagen on 25 January 2011. A passenger of the PMV was killed in the collision. The defendant was subsequently charged and convicted of the offence of driving carelessly and dangerously causing death of a person. The plaintiff claimed that the PMV was a write-off as a result of the collision, and that he had lost profits of his PMV business. The plaintiff also sought damages referable to the bel kol compensation payments he had made to the relatives of the deceased passenger. 

HELD: The Court considered legal principles of negligence and liability, and found that, on the balance of probabilities, the defendant was liable for the collision of the plaintiff’s Toyota Hiace PMV and the defendant’s Dyna truck. The Court ordered that the defendant pay the plaintiff damages of K81,600.00 in total for the replacement of the PMV vehicle, loss of profits and payment of cash compensation and pigs to the family of the deceased passenger. The Court also ordered that the defendant pay interest of 8% annually on the total damages awarded from the date the Writ of Summons and Statement of Claim were originally filed until the date of judgment. Finally, the Court ordered the defendant to pay the plaintiff his costs of and incidental to the proceedings, on a party-party basis, such costs to be taxed if not otherwise agreed.

Cases Cited:
Cheong Supermarket Pty Ltd v Muro [1987] PNGLR 24
Jimmy v Rookes [2012] N4705
Motor Vehicles Insurance Ltd v Kuri [2006] SC825
Naki v AGC (Pacific) Ltd [2006] N5015
Samot v Yame [2020] N8256
Yaman v Independent State of Papua New Guinea [2022] SC1942

Legislation:
Evidence Act 1975
Judicial Proceedings (Interest on Debts and Damages) Act 1962
Motor Traffic Act 1967

Counsel:
Mr D. Piam, for the Plaintiff
No appearance by the Defendant

REASONS FOR JUDGMENT

6th July, 2023

1.	COLLIER J:  Before the Court is an Amended Writ of Summons and Statement of Claim filed on 8 September 2015 in which the plaintiff claims for loss and damages suffered from a collision between his Toyota Hiace PMV and the defendant’s Dyna truck on the afternoon of 25 January 2011. A Defence had earlier been filed by the defendant on 2 May 2014 (in answer to the plaintiff’s original Writ of Summons and Statement of Claim filed on 10 April 2014) in which the defendant claimed negligence on the part of the plaintiff giving rise to the incident. 

2.	The Defendant filed a Notice of Motion on 24 September 2015 seeking summary dismissal of the proceedings, however the Notice of Motion was dismissed for want of prosecution on 24 October 2020.

3.	Mr Piam, the lawyer for the plaintiff, appeared at the hearing before me at the National Court in Mount Hagen on 3 July 2023. Mr Paiya, the lawyer for the defendant did not.

4.	Mr Piam informed the Court that he had been contacted by Mr Paiya, and that allegedly Mr Paiya was having difficulty travelling to Mount Hagen from Port Moresby due to flight disruptions.

5.	Instead of his lawyer, a lay person appeared, claiming to be representing the defendant. This person stated that his name was Mr Stanley Michael, and that he was the cousin/brother of the defendant. Mr Michael said further that the defendant was in Lae, and that the defendant asked for the matter to be adjourned in order to arrange another lawyer to appear at the next hearing.

6.	Mr Michael was plainly not Counsel instructed by the defendant, and was himself not the defendant. To the extent that it was possible for me to accept the statements of Mr Michael made from the bar table, it appears that the defendant was seeking an adjournment of the hearing. Certainly, there was no appearance by the defendant in person.

7.	Orders for adjournment are at the discretion of the Court. In my view, it was not appropriate to adjourn the hearing in circumstances where:

•	The defendant was represented by a lawyer on the record. According to the endorsements on the file, Mr Paiya appeared at the case management hearing before Eliakim AJ on 14 June 2023 when her Honour ordered that the trial be listed before me on 3 July 2023. Plainly the defendant’s lawyer, and presumably the defendant, has been aware of the hearing date since 14 June 2023.

•	There is no evidence before the Court that Mr Paiya had ceased acting for the defendant since his last appearance in this matter. I note, for example, that a Statement of Agreed & Disputed Facts, signed by Mr Paiya was filed by the plaintiff’s lawyer on 15 June 2023.

•	I note the excuse of Mr Paiya that he was unable to travel to Mount Hagen due to flight disruptions. In my view that is an unacceptably poor excuse in circumstances where there are two airlines which fly between Port Moresby and Mount Hagen, and Mr Paiya presumably could have travelled to Mount Hagen on the weekend. 

•	This matter has been before the Court for many years. Notwithstanding the possibility of prejudice to the defendant, in my view it would be completely unsupportable for the matter to be adjourned to a future date simply because it was inconvenient to the defendant’s lawyer to appear. I also consider that the failure of the defendant to appear, but rather to send a person who appeared to be a relative, is unacceptable.

8.	I make no formal order refusing an adjournment, because it is not entirely conclusive that Mr Stanley Michael had authority to seek that order. In the absence of that authority, I consider it appropriate to continue to consider the matter on the basis that there was no appearance at the hearing by the defendant.

THE PLEADINGS

9.	In his Statement of Claim filed on 8 September 2015 the plaintiff claims as follows:

1.	The Plaintiff is at all material times to this action a natural adult person who can sue and be sued in his own name and style.

2.	The Defendant is at all material times to this action a natural adult person who can sue and be sued in his own name and style and he is sued in his capacity as such.

3.	The Plaintiff purchased the 15-seater Toyota Hiace Bus through a discount sale offered to one Timothy Titipu by Ela Motors Lae Branch on or about 21st October 2010.

4.	The said Timothy Titipu was purchasing number of vehicles at the time from Ela Motors Lae Branch and discount price was a premium offered to Mr Titipu therefore at the time.

5.	The Plaintiff owned and operated his 15-seater Toyota Hiace PMV bus since from the time he purchased the vehicle, but the registration still remained under Timothy Titipu’s name until the time when the vehicle got involved in an accident.

6.	On or about 25th January 2011 at around 4.00pm, the Plaintiff’s PMV Bus left Hagen for Kundiawa on its normal route when it got involved in an accident along the Banning part of the Highlands Highway in Jiwaka Province. The Plaintiff’s PMV was driven by one Koim Witi at the time the vehicle got involved in the accident.

7.	The Defendant was driving his Dyna truck up towards Mt. Hagen when it collided with the Plaintiff’s PMV bus while the bus was speeding down from Mt. Hagen to Kundiawa.

8.	The Defendant negligently turned his Dyna truck to the opposite lane when it was hit by the oncoming Plaintiff’s PMB bus, causing extensive damage to both vehicles and causing death to of one of the passenger in the bus, one Kiwai Kombuk.

9.	The Plaintiff paid compensation to the deceased relatives at a total of K37000.00

10.	The vehicle was extensively damaged and a reputable auto shop assessed the damages to be beyond repair which in other words was written off.

11.	The Defendant was charged and convicted for driving carelessly and dangerously causing death of a person. His conviction was entered on 26th November 2012… He appealed the conviction and his case was dismissed on 10th February 2014 for want of prosecution.

PARTICULARS OF LOSS AND DAMAGES
10.	As a result of the Defendants actions the Plaintiff has suffered loss and damages.

Particulars of Claim

11.	The Plaintiff claims the following:
(a)	A new Toyota Hiace 15 seater bus at K76000.00
(b)	Loss of profit earnings at K300.00 per day from the date of accident to the date of judgment
(c)	Loss of Compensation of the deceased at K15000.00 cash
(d)	Pigs x 16 valued at K22000.00
(e)	Out of pocket expenses
(f)	General Damages
(g)	Special Damages
(h)	8% interest per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52
(g)	Costs of the proceedings

12.	In his Defence filed on 2 May 2015, being a defence to the original Writ of Summons and Statement of Claim filed by the plaintiff, the defendant relevantly pleaded:
3.	The Defendant denies paragraph 6 of the Statement of Claim and further states that the Defendant was driving back from Kudjip towards Mount Hagen. When driving close to his house, he signalled his truck to turn right into his residence and he already turned his vehicle diagonally and wanting to drive in, realising that the 15 Seater bus was approximately 20 to 25 metres away when the driver of the 15 Seater Bus negligently drove on a full speed coming from Mount Hagen and bumped into the Defendant’s truck which resulted in the death of his passenger.
…
5.	…the defendant admits and says he was convicted and fined K1,000.00 and further Appealed to the National Court and the Appeal was Dismissed for Want of Prosecution.
6.	… Further save to say that the plaintiff is a third party who have no right to bring this claim and he is not the owner of the 15 seater PMV bus.
8.[sic]	In the above premises, the defendant denies liability.

13.	A Statement of Agreed and Disputed Facts was filed by the parties on 15 June 2023. The following were Agreed Facts:

1.	The Plaintiff is at all material times to this action a natural adult who can sue and be sued in his own name and style.
2.	The Defendant is at all material times to this action a natural adult who can use and by [sic] sued in his own name and style.
3.	On or about 25th January 2011 at abound [sic] 4.00pm, the PMV bus left Hagen for Kundiawa on its normal rout when it got involved in an accident along the Banning part of the Highlands Highway in Jiwaka Province. The PMV bus was driven by one Koim Witi at the time the vehicle got involved in the accident.
4.	That the Defendant was driving his Dyna truck up towards Mt. Hagen when it collided with the Plaintiff’s PMV bus while the bus was speeding down from Mt. Hagen to Kundiawa.
5.	The Defendant turned his Dyna truck to the opposite lane when it was hit by the oncoming PMV bus, causing extensive damage to both vehicles and causing death of one of the passengers in the bus, one Kiwai Kombuk.
6.	That the Defendant was charged and convicted for driving carelessly and dangerously causing the death of a person. His conviction was entered on 26th November 23012 CB. No. 20/2011. He appealed the conviction and his case was dismissed out on 10th February 2014 for want of prosecution. 

14.	 The following were Disputed Facts:

1.	That the Plaintiff purchased the 15 Seater Toyota Hiace but through a discount sale offered to one Timothy Titipu by Ela Motors Lae branch on or about 21st October 2010.

2.	That the said Timothy Titipu was purchasing number of vehicles at the time from Ela Motors Lae branch and discount rice [sic] was at premium offered to Mr Titipu therefore at the time.

3.	That the Plaintiff owned and operated and his 15 seater Toyota Hiace PMV bus since from the time he purchased the vehicle but the registration still remained under Timothy Titipu’s name until the time when the vehicle got involved in an accident.

4.	That the Plaintiff paid compensation to the deceased’s relative a total of K37,000.00

5.	That the vehicle was extensively damaged and a reputable auto shop assess the damages to be beyond repair which in other words was written off.

6.	That as a result of the Defendant’s actions, the plaintiff suffered loss and damages [as claimed in the Statement of Claim].

15.	All evidence of the parties was by affidavit. No witnesses were sought for cross-examination

EVIDENCE OF THE PLAINTIFF

16.	The plaintiff filed the following evidence:

•	His affidavit sworn 12 December 2014
•	Affidavit of Kopono Marakus Koim sworn 12 December 2014
•	Affidavit of James Kewa sworn 12 December 2014
•	His affidavit sworn 2 July 2015
•	His affidavit sworn 21 September 2022

17.	In his affidavit sworn 12 December 2014 Mr Palaru relevantly deposed:

•	He was the owner of the Toyota Hiace 15 Seater PMV bus which was purchased on or about 21 October 2010 at Ela Motors Lae Branch.
•	He commenced operating the bus on the Highlands Highwaya Route 100 on the Mt Hagen Kundiawa section of the Highlands Highway and the bus usually made a profit of K300.00 on average per day.
•	On or about 25 January 2011 at around 4.00pm his bus left Mt Hagen for Kundiawa on its normal route. The bus was driven by Mr Koim Witi.
•	At or close to banning market in Jiwaka Province the defendant driving up towards Mount Hagen in his Dyna truck and without waiting for the bus which was bearing down the highway on high speed turned suddenly into the land of the oncoming bus and the bus hit the defendant’s Dyna truck on the left side causing extensive damages to both vehicles, and causing the death of one of the passengers in the bus one Kiwai Kombuk.
•	He paid compensation to the deceased relatives at a total of K10,000.00 and 14 pigs worth K2,000.00 each.
•	The vehicle was extensively damaged and a reputable auto shop assessed the damages to be beyond repair.

18.	Annexed to Mr Palaru’s affidavit as Annexure “A” was a Certificate of Registration and CTP Insurance dated 10 October 2013, for a period of one year. The vehicle described in that Certificate of Registration is Registration number P0972G, Chassis number 0003383. Mr Palaru deposes that this Certificate of Registration and CTP Insurance was a true copy of the registration papers for the vehicle. Annexure “B” was a PMV Licence issued under the Motor Traffic Act dated 10 October 2013 for one year, at a cost of K161.50.

19.	Annexure “C” was an undated letter under the letterhead of Ela Motors Toyota at Mount Hagen, being a Total Loss Assessment in respect of a Toyota Hiace Bus Registration P0972G, and which relevantly read:

Dear Sir
We have inspected and assessed the above mentioned unit located in your premises and would like to regretfully inform you that the vehicle is damaged beyond repairs.
Due to excessive damages sustained to its front face rear tray, engine components and its suspensions, accurate repairs will be impossible but continuous supplementing maybe possible.
The repair value may possibly be more than the actual value of the vehicle.
On this notice, this vehicle should be considered uneconomical for repairs and is a total loss.

20.	I note that Annexure “A” and Annexure “C” were also annexed to Mr Palaru’s affidavit sworn 21 September 2022. 

21.	In their affidavits, Mr Koim and Mr Kewa deposed that they were both community leaders, and that they had witnessed the plaintiff paying compensation to the relatives of the person killed in the vehicle collision. They both gave evidence that, on or about 17 December 2011 at Kagamuga Police Barracks, they witnessed payment by the plaintiff to the relatives of the deceased passenger of a total of K10,000.00 cash and 14 pigs worth K2,000.00 as compensation payment. 

22.	In his affidavit sworn 2 July 2015 the plaintiff relevantly deposed:

•	He was the registered owner of the Toyota Hiace registration P0972G.
•	He purchased the vehicle on or around 21 October 2010 at Ela Motors, Lae Branch.
•	In purchasing the vehicle he was financially assisted by his uncle Mr Timothy Titipu, who was a businessman who lived in Popondetta.

23.	I note that although the plaintiff referred to a statutory declaration by Mr Titipu annexed to the affidavit, that annexure is not evident on the Court file.

24.	In his affidavit sworn 21 September 2022 the plaintiff relevantly deposed:

3.	On 14th October 2010 I got a loan from my uncle Mr Timothy Titipu who is a businessman from Popondetta and purchased a Toyota Hiace PMV bus under my uncle’s name because he is a regular customer of Ela Motors and had an account with them where he bought vehicles on discount, so he bought my vehicle under his name. My uncle was to purchase my bus and later transfer ownership to my name that was the arrangement I made with my uncle.
…
4.	The bus was then to be transferred to my name but in the meantime, it was under my uncle’s name as per our understanding reached as stated as one in paragraph 3.

5.	I started operating the bus on the Highlands Highway route 100 on the Mt. Hagen Kundiawa section of the Highlands Highway and the bus usually made a profit of K300.00 on average per day. During the early months of operation, the bus was under my uncle’s name.

6.	On or about 25th January 2011 at around 4.00pm, my bus left Mt Hagen for Kundiawa on its normal route. The bus was driven by one Mr Koim Witi.

7.	At or close to banning market in Jiwaka Province, the Defendant was driving up towards Mt. Hagen in his Dyna truck and without waiting for the bus which was driving down the highway on high speed, turned suddenly into the lane of the oncoming bus and the bus hit the Defendant’s Dyna on the left side door causing extensive damages to both vehicle and causing the death of one the passengers in the bus one Kiwai Kombuk.

…

8.	I paid compensation to the deceased relatives in the total sum of K10,000.00 and 14 pigs worth K2,000.00 each.

9.	My PMB [sic] Bus was extensively damaged and Ela Motors assed [sic] the bus to beyond repair which in other word was written off.
…
10.	The Defendant was charged and convicted for driving carelessly and dangerously causing the death of a person. His conviction was entered on 26th November 2012…He appealed the conviction, and his case was dismissed on 10th February 2014 for want of prosecution.
…
11.	I had very difficult time dealing with deceased’s relatives. They demanded me to pay K30,000.00 as compensation and 30 pigs but later the Western Highlands Provincial Peace and Good Order Committee decided that I pay K15,000.00 and 10 pigs.
…
12.	Earlier on 21st February 2011, I paid K2000.00 and 2 pigs as bel kol money. On 17th December 2011, I paid K8,000.00 and 10 pigs as compensation. I paid a total of K10,000.00 cash and 12 pigs worth K2,000.00 each to the deceased’s relatives.

13.	The PMV Bus made a daily income after expense of K300.00 per day. Monetary 
1. Weekly income (K300.00 x 6 days) 	=	K1,800.00
2. Monthly income			=	K7,200.00
3. Yearly income			=	K86,400.00
14.	I suffered loss from the date of Accident to the date of Judgment at a loss of K86,400.00 per which calculated up to the date of Judgment.
15.	The PMV was later transferred to my name after my uncle Timothy Titipu and I signed statutory declaration forms.
…
16.	The PMV licence was also changed to my name.
…
17.	On 04th February 2015 I got a new quote from Ela Motors for a new bus as the first one was written off. The value of the new bus as per the quotation is K76,000.00.
…
18.	I suffered loss of the PMV bus in the value of K76,000 including loss of income at the rate of K86,400.00 per annum from the date of accident being on 25th January 2011 until the date of Judgment to be assessed.

25.	I note Mr Titipu’s statutory declaration annexed to this affidavit as Annexure “I”.

 EVIDENCE OF THE DEFENDANT

26.	The only evidence of the defendant in the proceedings was his affidavit sworn 18 May 2015. In that affidavit the defendant deposed that, at the time of the accident, the vehicle was owned and registered under the name of Timothy Titipu, and accordingly the claim of the plaintiff should be dismissed.

submissions IN RESPECT OF LIABILITY

27.	In written and oral submissions Mr Piam submitted, in summary:

•	The plaintiff must prove his case on the balance of probabilities.
•	No rebuttal evidence has been adduced by the defendant.
•	The conviction of the defendant for driving carelessly and dangerously causing death of a person, in connection with the collision between the plaintiff’s vehicle and the defendant’s vehicle is relevant to the plaintiff’s claim of liability on the part of the defendant.
•	The defendant owed the plaintiff a duty of care by turning into the PMV’s lane on the highway, thereby causing the collision between the vehicles.
•	The sworn evidence of the plaintiff is that the Toyota Hiace was purchased by his uncle Mr Titipu because of the discounted price Mr Titipu was able to achieve in dealing with the car dealer.
•	The uncontradicted evidence of community leaders Mr Kewa and Mr Koim was that the plaintiff had paid the claimed customary compensation to the deceased’s relatives referable to the death of the deceased in the collision on 25 January 2011.

CONSIDERATION in respect of liability

Evidence

28.	The defendant has not updated his Defence by reference to the Amended Originating Summons and Statement of Claim. The evidence before the Court was thin. No evidence of substance opposing the plaintiff’s claims was either filed or given by the defendant. The only arguments of the defendant were:

•	The plaintiff had no cause of action because the vehicle was not owned by the plaintiff on 25 January 2011 when the accident occurred, and
•	In the Defence filed by the defendant, although he conceded turning his vehicle to cross the lane in which the plaintiff was travelling towards him, the driver of the plaintiff’s vehicle was at fault for not slowing down.

29.	To the extent that I am able to assess the credibility of the witnesses and their evidence, the plaintiff’s evidence has been consistent throughout the proceedings and has been supported by evidence of other witnesses including Mr Koim and Mr Kewa regarding the compensation the plaintiff paid to the family of the deceased PMV passenger, and the statutory declaration of the plaintiff’s uncle Mr Titipu referable to the reason for the formal ownership of the PMV on 25 January 2011 and the subsequent transfer of ownership to the plaintiff. 

30.	I note that no evidence was given by the driver of the PMV, Mr Koim Witi.

Legal principles

31.	The plaintiff’s Statement of Claim is drafted in simplistic terms. At para 8 of the Statement of Claim however the plaintiff pleads that the defendant negligently turned his Dyna truck to the opposite lane, causing the collision with the plaintiff’s Toyota Hiace PMV bus.

32.	Principles of negligence are well-settled. As the Supreme Court observed in Yaman v Independent State of Papua New Guinea [2022] SC1942:

43. 	Negligence is a common law principle which we have adopted that is based on the notion of conduct that is injurious to a neighbour. It revolves around what a reasonable person should or should not do that might result in harm or injury suffered by his neighbour. For a claim in negligence to constitute an actionable wrong four (4) essential elements must be pleaded in the SoC; that the defendants owed a duty of care to the plaintiff, the defendants breached that duty of care, the breach of duty had caused injury or harm to the plaintiff and the plaintiff suffered harm or loss.

44.	In Michael Kuman v Digicel (PNG) Ltd (2019) SC1851 the Supreme Court in discussing the constituent elements of the tort of  negligence  explained:

63. The tort of  negligence  is an English common law claim founded on the principle of duty of care. This principle has long been adopted and applied in our jurisdiction. It has its genesis in the much-celebrated English Court of Appeal case Donoghue v Stevenson [1932] AC 562.

64. To establish a cause of action based on  negligence , a plaintiff is required to prove four elements –
1. duty of care;
2. breach of the duty;
3. causation of the injury or harm;
4. damages or loss suffered.

65. Generally speaking, when a person is injured as a result of the careless or negligent act of another, the careless or negligent person will be legally liable for any resulting harm or injury sustained by the other person.

66. To succeed in a claim of negligence , the plaintiff must prove that the defendant acted carelessly or negligently by adducing credible evidence showing that –
1. the defendant owed a legal duty of care to the plaintiff in the circumstances of the case;
2. the defendant breached that legal duty by acting or failing to act in a certain way;
3. it was the defendant’s action, inaction or omission to act that in fact caused the plaintiff’s injury; and
4. the plaintiff was harmed or injured as a result of the defendant’s action.

33.	In the present case the plaintiff was not the registered owner of the Toyota Hiace PMV at the time of the collision. However, the plaintiff has given unrebutted evidence that in fact the vehicle was his, and it was in his uncle’s name only because his uncle was able to obtain a discounted price for the purchase of the vehicle from the car dealer.

34.	The plaintiff also submitted that he would not have paid the bel kol moneys to the relatives of the deceased passenger if he were not the actual owner of the PMV in which the deceased had been travelling.

35.	I also note the statutory declaration by Mr Titipu, annexed to affidavits of the plaintiff, concerning the reason the vehicle was originally registered in his name rather than the plaintiff’s name.

36.	I accept the contention and supporting evidence of the plaintiff that the plaintiff was the actual owner of the Toyota Hiace PMV at the time of the collision on 25 January 2011, notwithstanding that he was not the registered owner.

37.	The next question which arises is whether the Statement of Claim as presently drafted pleads a cause of action. I have set out the legal principles whereby the tort of negligence can be established. Referable to this point I also notice the observation of the Supreme Court in Motor Vehicles Insurance Ltd v Kuri [2006] SC825 where their Honours said:

A cause of action accrues when all of the facts necessary to give rise to a form of action establishing a right to judgement come into being: Patterson Lowa, Minister for Minerals and Energy v Wapula Akipe & Ors [1992] PNGLR 399 per Kapi DCJ at 429. When there is an injury to a person in a  motor vehicle  accident caused by negligence reasonably foreseeable and not too remote caused by a party who owes a  duty  of  care, a cause of action has accrued.

38.	No Notice of Motion was filed by the defendant claiming that the Statement of Claim as filed failed to plead the nature of the duty of care such that the Amended Originating Summons and the Statement of Claim were bad for uncertainty.

39.	I am satisfied that, in claiming negligence on the part of the defendant, the Statement of Claim pleads with sufficient clarity that the defendant owed a duty of care to the plaintiff to drive safely, and that the defendant breached that duty of care.

40.	I have had regard to the evidence before me. In particular, I have regard to the evidence that the defendant was convicted of an offence of dangerous driving referable to the incident involving his Dyna truck and the plaintiff’s PMV. As Cannings J observed in Jimmy v Rookes [2012] N4705:

10.	The common law position, represented by Hollington v Hewthorn [1943] 1 KB 587, was that evidence of a criminal conviction is not admissible in subsequent civil proceedings to prove any facts on which the conviction was based. So evidence of a prior conviction carried no weight at all, as it was not even admissible. That strict position is not applicable in PNG, as noted by Bredmeyer J in Aundik Kupil v The State [1983] PNGLR 350, because Section 47 of the Evidence Act abolishes a large part of the rule in Hollington v Hewthorn. However, Section 47 still does not relieve a plaintiff in subsequent proceedings of the onus of proving the case. Caution must be exercised in dealing with prior convictions, as shown by the decisions of the Supreme Court (Woods J, Hinchliffe J, Brown J) in John Kaina v The State [1990] PNGLR 292 and the National Court (Lay J) in WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003 and Wamena Trading Limited v Civil Aviation Authority (2006) N3058.

11.	In my view the weight to be attached to evidence of conviction of a driver for a traffic offence in subsequent civil proceedings that relate to the same facts as those considered by the court which convicted the driver, is this: a natural inference arises that the driver was negligent (Anis v Taksey (2011) N4468, Omonon v Kuanga (2012) N4686). An evidentiary burden is then cast upon the defendant to adduce evidence to rebut that inference. This approach has been propounded in a number of British decisions which expressed disapproval of the rule in Hollington v Hewthorn… The legal burden of proving the case does not shift from the plaintiff but common sense dictates that the defendant needs to bring evidence to throw doubt on the correctness of the conviction.
(emphasis added)

41.	On the basis of that evidence, in respect of the issue of liability I find that:

•	The plaintiff’s vehicle was being driven lawfully on a public road at the time of the collision with the defendant’s vehicle;
•	The plaintiff’s vehicle was being driven on the same stretch of public road as the defendant’s vehicle, at the same time, although in opposite directions, such that the defendant owed the plaintiff as the owner of the Toyota Hiace PMV a duty of care;
•	Although the plaintiff conceded that the PMV was being driven “at speed” at the time of the collision there is no evidence that the PMV was exceeding the speed limit at that time, or that the driver of the PMV was driving negligently or carelessly;
•	The defendant breached the duty of care he owed to the plaintiff (as the owner of the PMV) by causing his vehicle to cross the highway at the same time as the plaintiff’s vehicle was approaching. The evidence of the defendant to the effect that he saw the plaintiff’s PMV but expected the plaintiff’s vehicle to slow down to give way to the defendant, such that the collision was in some way the fault of the driver of the PMV, is both implausible and unreasonable;
•	The fact that the defendant was convicted of an offence referable to his dangerous driving resulting in the collision with and damage to the plaintiff’s vehicle leads to the natural inference that the defendant was negligent in respect of his driving leading to the collision with the plaintiff’s PMV;
•	It was the defendant’s action in driving negligently that caused damage to the vehicle; and
•	The plaintiff was harmed or injured as a result of the defendant’s conduct.
42.	It now falls to me to consider the quantum of damages to be awarded to the plaintiff.

CONSIDERATION: ASSESSMENT OF DAMAGES

43.	Again, legal principles referable to assessment of damages are settled. As Cannings J observed in Naki v AGC (Pacific) Ltd [2006] N5015:

i.	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
ii.	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
iii.	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
iv.	The same principles apply after default judgment is entered and the trial is on assessment of  damages  – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any  damages . Injury or  damage  suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
v.	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
vi.	Where default judgment is granted, for  damages  to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
vii.	The fact that  damages  cannot be assessed with certainty does not relieve the wrongdoer 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. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
viii.	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
iv.	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.) 

44.	The plaintiff claimed damages as follows:

(a)	A new Toyota Hiace 15 seater bus at K76,000.00
(b)	Loss of profit earnings at K300.00 per day from the date of accident to the date of judgment
(c)	Loss of Compensation of the deceased at K15000.00 cash
(d)	Pigs x 16 valued at K22000.00
(e)	Out of pocket expenses
(f)	General Damages
(g)	Special Damages
(h)	8% interest per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52
(g)	Costs of the proceedings

45.	Applying the legal principles set out above to these heads of damage I observe as follows.

Replacement of vehicle

46.	The evidence before the Court is that the vehicle was purchased by the plaintiff, through his uncle Mr Titipu as the registered owner, on or about 21st October 2010.

47.	It is unclear whether the vehicle was purchased new, or indeed how much Mr Titipu paid for it in circumstances where Mr Titipu apparently had received the vehicle at a discount from the car dealer. Counsel for the plaintiff Mr Piam conceded at the hearing that there was no direct evidence, including any documentary evidence, of either of these matters.

48.	There is no photographic evidence before the Court of the plaintiff’s PMV bus after the accident, or a detailed description of the nature of the damage to the vehicle. However, I accept the evidence that the vehicle was written off by the repairer – namely the total cost of repairs would exceed the value of the vehicle. While the defendant challenges that this is the case, there is in evidence a letter from repairer Ela Motors which, although undated, appears genuine, and which states that the vehicle was “written off”. Further, I note that the accident involving the two vehicles was of such seriousness that a passenger in the PMV bus was killed. In my view it is more probable than not that the PMV bus would have been significantly damaged to the point of being written off as a result of that accident.

49.	However, and notwithstanding that the repairer “wrote off” the plaintiff’s vehicle, there is also evidence adduced by the plaintiff of the registration and CTP insurance of the vehicle in 2013. This evidence supports an inference that the vehicle may have been the subject of some limited repair, and continued (at least in 2013) to be roadworthy such that it was capable of registration and insurance. I note, of course, that the plaintiff has not claimed any repair costs in these proceedings.

50.	The plaintiff claims as a head of damages the sum of K76,000.00, being the replacement of his Toyota Hiace PMV vehicle by a new Toyota Hiace 15 seater bus. At the time of the collision the plaintiff had owned his vehicle for only 3 months. I consider that damages referable to replacement of the vehicle are appropriate, given that it was written off by the repairer. However in the circumstances I have just described, including the absence of direct evidence whether the PMV bus was actually purchased new, or of the purchase price, I consider it appropriate that the amount awarded to the plaintiff be discounted by 50% to K38,000.00.

Loss of profit

51.	I accept that the plaintiff was conducting a business of operating a PMV at the time of the collision. However, I have a number of concerns in respect of the loss of profit claimed by the plaintiff arising from the loss of the PMV. Similar concerns were articulated by David J in Samot v Yame [2020] N8256 as follows:

61. It is a well settled principle of law in this jurisdiction that 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 sufficiently reasonable to repair the asset: Abel Kopen v The State (1988-89) PNGLR 659. The plaintiff’s duty to mitigate his loss requires him to take appropriate steps to get the repairs done efficiently and without unreasonable delay: Abel Kopen v The State (1988-89) PNGLR 659.
62. The plaintiff has failed to adduce independent corroborative evidence such as financial statements or audited accounts from accountants supported by bank statements or other business records which would show income generated and liabilities incurred by the business to prove his claim for loss of income of K45, 000.00.
63. The owners of PMV business and trade stores operated by simple Papua New Guineans are required to keep records of their business including appropriate tax returns and produce them in evidence to support a claim for loss of income or profit from such operations. The decision in Graham Mappa v PNG Electricity Commission (1995) PNGLR 170 demonstrates that position.
64. In Graham Mappa v PNG Electricity Commission (1995) PNGLR 170, following an award of K7,800.00 in  damages  by the National Court in a claim for  damages  for loss of income following  damage  caused to the plaintiff’s Isuzu 25-seater bus when it was involved in a collision with the defendant’s  vehicle , the defendant appealed to the Supreme Court against the award. In allowing the appeal, the Supreme Court found that the appellant did not establish his  damages  by the calling of sufficient evidence. The only evidence led by the plaintiff was a statement that his business earned K1,200.00 per week. The Supreme Court found that there was no documentary evidence such as bank records, tax returns or balance sheets or other evidence to support his claim apart from some comparison with another similar business run by someone else. Woods J. at 171 summarised the position in the following terms:
“[I]f you wish to establish matters like loss of profits from the operation of a modern business, then it is necessary to comply with the modern law, for example, producing such records as are required by the law. If you wish to have the advantages of a modern world of business, then you must comply with modern matters like tax laws. This would require appropriate business records to show whether any profit over and above business running costs was earned. And then, if a profit was earned, there are the requirements to pay taxes. The courts have been referring to these requirements in recent years, especially in the operation of shop or trade store businesses. And the Supreme Court, by its ruling, is implying that the same must apply to the operation of a PMV or suchlike public transport business.”

52.	In the present case:

•	There is no evidence that the plaintiff was making a profit of K300.00 per day at the time of the collision other than his own unsupported estimate.
•	At the time of the collision the plaintiff’s evidence was that he had had the vehicle for just on three months. There is no evidence that he had made, was making, or could potentially make, K86,400.00 per annum profit from the operation of the PMV business, including to the date of judgment.
•	As David J observed in Samot v Yame, the owners of a PMV business are required to keep records of their business including appropriate tax returns. No such evidence was before the Court.
•	As David J also observed, the plaintiff had a duty to mitigate his loss. The plaintiff gave evidence that the PMV was not capable of repair, however I note the evidence of the plaintiff that the vehicle was re-registered in 2013 which suggests that it was roadworthy at that point. Mitigation of his loss could have included obtaining another vehicle to replace the damaged PMV within a reasonably short frame of time.

53.	At the hearing Mr Piam submitted that the bus could have made a yearly income for its active first four years, and accordingly an amount of K345,600.00 in damages was reasonable. 

54.	I do not consider it reasonable to award damages to the plaintiff for claimed lost profits from the date of the collision to the date of judgment, in circumstances where the plaintiff has not adduced documentary evidence of his lost profit and where he is under a duty to mitigate his loss.

55.	Relevant events took place in 2011. It is unclear from the evidence when the repairer wrote to the plaintiff informing him that the vehicle was not capable of repairs, and to that extent it is unclear how long the plaintiff was in a state of uncertainty as to whether the vehicle could be repaired or whether he would be required to purchase a replacement vehicle. 

56.	In the absence of documentary evidence to substantiate the plaintiff’s claim of K300.00 per day for loss of profit, I consider it appropriate to discount that amount by 50%.

57.	To the extent that the plaintiff intended to continue his business, and would have endeavoured to obtain a replacement vehicle, in the absence of any evidence on this point and noting the duty of the plaintiff to mitigate his loss I consider that 6 months lost profit is a reasonable amount, being in the (discounted) amount of K21,600.00.

Payment of cash compensation and pigs to the family of the deceased passenger

58.	The evidence of the plaintiff concerning his payment of cash compensation and pigs to the family of the passenger killed in the vehicle collision is not rebutted by any evidence to the contrary adduced by the defendant. Importantly, it is also supported by other evidence in the proceedings, including that of Mr Koim and Mr Kewa.

59.	The payments made by the plaintiff to the family of the deceased passenger were directly attributable to the collision which was in turn caused by the negligence of the defendant.

60.	In my view the plaintiff is entitled to recover the value of these payments. At the hearing Mr Piam submitted that an appropriate amount to award the plaintiff would be K22,000.00, representing 12 pigs at K1,000.00 per pig, in addition to K10,000.00 cash paid.

61.	I am prepared to award the plaintiff the total amount of K22,000.00 under this head of damages.

Other heads of damage

62.	The plaintiff further claims out of pocket expenses, general damages and special damages. These categories are not particularised, other than in respect of the heads of damage to which I have already referred. As Counsel for the plaintiff conceded at the hearing, these heads of damage are not substantiated.

Interest

63.	The total damages to which I consider the plaintiff is entitled are K81,600.00, representing :

•	K38,000.00 referable to replacement of the plaintiff’s PMV;
•	K21,600.00 referable to lost profits; and
•	K22,000.00 referable to payment of cash compensation and pigs to the family of the deceased passenger.

64.	The plaintiff has sought interest at a rate of 8% annually pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act. The awarding of interest under that legislation is discretionary: Cheong Supermarket Pty Ltd v Muro (1987) PNGLR 24.

65.	I am satisfied that the plaintiff is entitled to interest at the rate of 8% annually on the total amount awarded of K81,600.00 from the date of filing of the Writ of Summons on 10 April 2014 to the date of judgment.

Costs

66.	The award of costs is also discretionary, however as a general proposition costs follow the event. The defendant is ordered to pay the plaintiff’s costs on a party-party basis, to be taxed if not otherwise agreed.

67.     The Court orders that:

1.	The defendant pay the plaintiff damages in the amount of K81,600.00.

2.	The defendant pay the plaintiff interest at the rate of 8% annually, pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, on the total amount awarded of K81,600.00 from the date of filing of the Writ of Summons on 10 April 2014 to the date of judgment.

3.	The defendant pay the plaintiff’s costs of and incidental to the proceedings on a party-party basis, such costs to be taxed if not otherwise agreed.
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Daniel Piam Lawyers: Lawyers for Plaintiff  
Paiya Lawyers: Lawyers for Defendant