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Tendi v Koiyayie [2023] PGNC 297; N10443 (21 August 2023)

N10443

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 614 OF 2015

BETWEEN:
STEVEN TENDI
Plaintiff

AND:
JUSTINE KOIYAYIE
First Defendant

AND:
HARVEST ELECTRICAL LIMITED
Second Defendant

Mendi/Ialibu: Kassman, J
2017: 19^th June
2023:21^st August

ASSESSMENT OF DAMAGES – motor vehicle collision – driver guilty of driving without due care and attention – default judgment granted for damages to be assessed – PMV bus damaged and quotation for repairs considered – loss of business considered – pecuniary damages – interest payable

Cases Cited:

Nil

Legislation Cited:

Judicial Proceedings (Interest of Debts and Damages) Act c. 52 s. 4 and 6
National Court Rules Order 22 Rule 11

Counsel:

Joseph Poponawa, for the Plaintiff
Tony Noki, for the First and Second Defendants

DECISION

21^st August 2023

1. KASSMAN J: This is the court’s ruling on the assessment of damages heard on 19 June 2017. Default judgment was entered for the Plaintiff and the Court ordered damages to be assessed.
   

Background

2. The Plaintiff Steven Tendi (“Tendi”) is the owner of motor vehicle a toyota coaster bus with the registration number HAO849 which the Plaintiff operated as a public motor vehicle carrying passengers and cargo for a fare (“the PMV bus”).
   
3. In the original writ of summons, there were three defendants named. The First Defendant Justine Koiyaiye (“Justine”) is the son of the Second Defendant Alex Limbeye Koiyaiye (“Alex”) and an employee of the Third Defendant Harvest Electrical Limited (“Harvest”). Alex is the sole shareholder and director of Harvest. Harvest was the owner of a motor vehicle a toyota land cruiser with the registration number HAM506 (“the land cruiser”). Together, all three defendants are referred to as “the defendants”.
   
4. On 14 May 2014, the land cruiser collided with the PMV bus (‘the collision”). Justine was driving the land cruiser. On 28 August 2014, Justine was found guilty of driving the land cruiser without due care and attention when it collided with the PMV bus on 14 May 2014. Justine appealed that decision to the National Court in proceeding CIA 80 of 2014 and that appeal was dismissed on 5 May 2016. A copy of my written decision in this appeal was annexed to Tendi’s affidavit filed 30 August 2015.
   
5. On 12 May 2015, Tendi commenced this proceeding with a writ of summons endorsed with a statement of claim. Tendi filed an amended statement of claim on 30 June 2016. Tendi sought orders that Justine caused the collision and was responsible for the damages sustained by the PMV bus. Tendi also claimed Alex and Harvest were vicariously liable for the loss and damages suffered by Tendi because of the collision caused by their employee or agent Justine.
   
6. On 18 October 2016, this court heard two applications, one filed by Tendi on 30 August 2016 seeking summary judgment and the other filed by the defendants on 31 August 2016 seeking leave to file their defence out of time. The court heard both applications and made various orders including (a) an order removing Alex as a defendant in the proceedings; (b) an order granting leave to the defendants to withdraw their application filed 31 August 2016 seeking leave to file their defence out of time; (c) an order granting leave to Tendi to withdraw his application for summary judgment; (d) an order granting Tendi default judgement against Justine and Harvest; and (e) an order that Tendi’s damages be assessed. Affidavits were filed by all parties supported by written submissions and the assessment of Tendi’s damages was conducted on 19 June 2017.
   
7. Tendi relied on the following documents: Amended Statement of Claim filed 30 June 2016 [document number 14], Submissions handed up in court on 19 June 2017, Affidavits of Steven Tendi filed 27 August 2015 [document number 5], 30 August 2015 [document number 17], 7 November 2016 [document number 21] and 2 June 2017 [document number 38]. Tendi also relied on two affidavits from two other owners of PMV buses operating the same routes and those were sworn by Tana Mongea Nema filed 10 April 2017 [document number 29] and 16 June 2017 [document number 20] and also from Opa Daiye filed 10 April 2017 [document number 30].
   
8. Justine and Harvest relied on the following documents. Submissions on quantum dated 24 May 2019 handed up in court on 19 June 2017, Submissions on quantum filed 16 May 2017 [document number 35], Affidavit of Alex Koiyaiye filed 10 April 2017 [document number 31] and the Affidavit of Tony Noki filed 19 May 2017 [document number 36]. The affidavit of Alex Koiyaye just asks for more time to recover from the loss of his home and church building and personal effects as a result of a devastating fire. It does not assist with evidence as to the assessment of damages claimed by Tendi. In Tony Noki’s affidavit, he talks about inspecting Tendi’s PMV bus with a used car salesman and panel beater from Ela Motors. He provides photos of Tendi’s PMV bus in its damaged condition and on my perusal of those photographs, they appear to confirm the extent of damage as asserted by Tendi. Noki also provides copies of a quotation he obtained from Ela Motors Port Moresby totaling K57,171.51 but that was obviously issued without inspection but just in reliance on photographs and description provided by Noki. He also provided a pre-accident valuation issued by Ela Motors Port Moresby where the valuation suggests that prior to the collision, Tendi’s PMV bus was valued at K70,990. Once again, that was issued without inspection of the PMV bus but just in reliance on photographs and a description provided by Noki including the mileage recorded on the PMV bus odometer. I do not give much weight to this evidence because the quotations were issued by staff at Ela Motors in Port Moresby who had not personally inspected the PMV bus. However, that evidence confirms Tendi’s PMV bus was in good operating condition as a PMV bus prior to the collision and that evidence also confirms the description of damage sustained to Tendi’s PMV bus. Most importantly, that evidence offered by Justine and Harvest does not discredit the evidence relied on by Tendi.
   

Assessment of damages – the principles applicable

9. The term “damages” is defined in McGregor on Damages, 16^th Edition, Sweet & Maxwell Limited, 1997 at page 3 in these words:
   

“Damages are the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at one time, unconditionally and generally, but not necessarily in English currency.”

At page 8, the learned author states:

“The object of an award of damages is to give the plaintiff compensation for the damage, loss or injury he has suffered. The heads or elements of damage recognized as such by the law are divisible into two main groups: pecuniary and non-pecuniary loss. The former comprises all financial and material loss incurred, such as loss of business profits or expenses of medical treatment. The latter comprises all losses which do not represent an inroad upon a person’s financial or material assets, such as physical pain or injury to feelings. The former, being a money loss, is capable of being arithmetically calculated in money, even though the however, is not so calculable. Money is not awarded as a replacement for other money, but as a substitute for that which is generally more important than money: it is the best that a court can do. The statement of the general rule from which one must always start in resolving a problem as to the measure of damages, a rule equally applicable to tort and contract, has its origin in the speech of Lord Blackburn in Livingstone v. Rawyards Coal Co. [1880] UKHL 3; (1880) 5 App. Cas. 25 at 39. He there defined the measure of damages as “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.”

10. I adopt and apply those principles to this matter. I first note default judgment was entered for Tendi against Justine and Harvest on 18 October 2016 so that determined liability in favor of Tendi against Justine and Harvest. This court must now ascertain what loss or damage was sustained by Tendi, both pecuniary and non-pecuniary, and then determine what amount of money to be awarded and paid to Tendi to restore Tendi to the same position he would have been if his PMV bus had not sustained the damage from the wrong caused by Justine. In my perusal of Tendi’s claim, he claims just pecuniary damages or losses sustained as a result of the damages sustained by his PMV bus. Tendi also claimed he suffered loss of business.
    

Pecuniary damages – damage to the PMV bus

11. In paragraph 12 of Tendi’s amended statement of claim, he provided particulars of damages to his PMV bus as (a) the front left-hand side all the way to the entry and exit door, (b) front cabin, (c) bumper, (d) windscreen (e) radiator. Tendi had his PMV bus inspected by three reputable motor vehicle dealers and they all provided quotations for the repairs to be conducted. The dealer that sells and repairs toyota coaster buses throughout Papua New Guinea is Ela Motors and their itemized quotation was for K81,246. Boroko Motors’ itemized quotation was for K79,046 and Highlands Workshop provided a general quotation for K79,101. In the exercise of my discretion, I assess the average at K80,000 and award that amount to Tendi.
    

Pecuniary damages – loss of business - PMV bus operation

12. In paragraph 15 of Tendi’s amended statement of claim, Tendi claimed loss of business over the period from the date of the collision on 14 May 2014 to 30 June 2016, a period of over two years. A claimant has a duty to mitigate his losses. In the exercise of my discretion, I will assess Tendi’s claim for loss of business over a period of twelve months only.
    
13. Tendi claims his 25-seater PMV bus operated principally between Pangia and Hagen and occasionally included trips to and from Mendi and the PMV fare at that time was K15 each way and the PMV bus would make a round trip from Pangia to Hagen and return daily so the daily collection would be K30 and for a full load of 25 passengers, Tendi would generate K750 daily. Considering contingencies for break-downs, driver or crew illness and operational costs of fuel, oil etc and tyre repairs and periodic service and other problems, I will allow an assessment as follows. The daily trip would carry just 20 passengers for a total collection daily of K600. For the same contingencies, I will make allowance for operations of the PMV bus on just five days a week making a weekly collection of K3,000 and that would be K12000 monthly. So over twelve months, collections would total K144,000. I award that amount to Tendi for his claim for loss of business.
    

Judgment Sum

14. The judgment sum is the total assessed under both heads of damages (K80,000 plus K144,000), a total judgment sum of K224,000.
    

Interest on awards of damages (judgment sum)

15. Interest is ordinarily awarded pursuant to the Judicial Proceedings (Interest of Debts and Damages) Act c. 52 on the judgment sum. Ordinarily, the judgment sum is payable either from the date the cause of action accrued being 15 August 2000 or from the date of filing of the writ of summons on 12 May 2015. To me, the filing and service of the writ of summons demonstrates the claimant is serious about his claim and is not just issuing letters of demand with no sanction. When the writ of summons is served, the defendants are liable to suffer sanction by default judgment if he fails to respond by filing a notice of intention to defendant and defence. Interest on the judgement sum will be payable from the date of filing of the writ of summons on 12 May 2015.
    

Pre-Judgment Interest on debts and damages.

16. Section 4(1) provides, “Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied in the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.” Tendi claimed interest at the rate of 8% per annum. That was not opposed by Justine and Harvest. I award interest at the rate of 8% per annum.
    
17. The Defendants shall pay the Plaintiff’ pre-judgment interest on the principal sum at 8% per annum pursuant to section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act c.52 calculated from the date of filing of the Writ on 12 May 2015 to today (21 August 2023) a total of 3021 days [3021 / 365 days x 8% x K244,000.00] in the sum of K161,561.42.
    

Post-Judgment interest on debts and damages.

18. Section 6(1) provides, “Subject to Subsections (2) and (3), where judgment is given or an order is made for the payment of money, interest shall, unless the court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on such of the money as is, from time to time, unpaid.”
    
19. The Defendants shall pay the Plaintiff post judgment interest on the judgment sum (K244,000.00) at 8% per annum calculated from today (21 August 2023) until payment in full pursuant to section 6(1) of the Judicial Proceedings (Interest on Debts and Damages) Act c.52 calculated to be K53.48 daily [K244,000.00 x 8% /365 days].
    

Costs

20. Pursuant to Order 22 Rule 11 of the National Court Rules, costs shall follow the event. Tendi has succeeded in his claim against Justine and Harvest on liability and quantum. I will award costs for Tendi against Justine and Harvest on a party and party basis, to be taxed if not agreed.
    

Conclusion

21. The final judgment of this court in favour of Tendi against Justine and Harvest is:
    1. Damages are assessed at K244,000.00.
    2. Pre-judgment interest is assessed at K161,561.42.
    3. Post judgment interest shall be assessed and calculated at K53.48 per day from today 21 August 2023 until payment in full.
    4. Justine and Harvest shall pay Tendi’s costs of the proceedings on a party and party basis, to be taxed if not agreed.
       

Formal orders

22. The formal orders of the court are:
    
    1. Damages are assessed in favour of the Plaintiff against First and Second Defendants with interest and costs.
       
    2. The First and Second Defendants shall pay the Plaintiff damages in the sum of K244,000.00.
       
    3. The First and Second Defendants shall pay the Plaintiff pre-judgment interest in the sum of K161,561.42.
       
    4. The First and Second Defendants shall pay the Plaintiff post-judgment interest calculated at K53.48 per day from today (21 August 2023) until payment in full.
       
    5. The First and Second Defendants shall pay the Plaintiff’s costs of the proceedings to be assessed on a party and party basis and to be taxed if not agreed.
       

Judgment and orders accordingly:

Jopo Lawyers: Lawyers for the Plaintiff
Jema Lawyers: Lawyers for the First and Second Defendants