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Keleli (trading as Gonom Transportation) v Parakua [2024] PGNC 408; N11090 (26 March 2024)

N11090

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 483 OF 2022

EMMANUEL KELELI trading as GONOM TRANSPORTATION
Plaintiff

-V-

NELSON PARAKUA
First Defendant

MELEN DOA
Second Defendant

Waigani: Kariko, J
2023: 4^th,12^th December
2024: 26^th March

DAMAGES – motor vehicle accident –vehicle damaged beyond economical repair –hire car – claims for loss of business, loss of vehicle & pain and suffering

Facts

The plaintiff sought damages after his vehicle was damaged beyond mechanical repair in a motor vehicle accident with the defendant’s vehicle.

Held:

Claims for damages must be clearly pleaded with particulars and proven by appropriate evidence which is independent and corroborative.

Cases Cited:
Mappa v PNG Electricity Commission [1995] PNGLR 170
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
The Central Bank of PNG v Gabriel Tugiau (2009) SC1013
William Mel v Coleman Pakalia and Others (2005) SC790

Legislation:
Judicial Proceedings (Interest on Debts and Damages) Act 2015

Counsel:
The plaintiff in person
No appearance for the First Defendant
Ms N Kamjua, for the Second Defendant

26^th March 2024

1. KARIKO, J: A hearing on assessment of damages followed the entry of default judgement against the defendants on 8 November 2023.
   
2. In these proceedings the plaintiff claimed that his vehicle a Toyota Mark II sedan Reg. No. BGH-386 (the Mark II) sustained substantial damages in a motor vehicle collision on 5 June 2022 due to the negligent driving of a vehicle owned by the second defendant and driven by her employee, the first defendant.
   
3. The first defendant did not appear in these proceedings, while second defendant was held to be vicariously liable for her employee’s negligence.
   

CLAIM FOR DAMAGES

4. In his Statement of Claim, the plaintiff seeks the following relief:
   
   1. Loss of business income calculated at a rate of K300 per day from 29 June 2022 to date of judgement;
   2. The value of the car at the sum of K29,000.00;
   3. General damages for pain and suffering;
   4. Costs of and incidental to this proceeding;
   5. Interest pursuant to section 8 of the the Judicial Proceedings (Interest on Debts and Damages) Act 2015; and
   6. Such other further orders the Court deems fit.
      

EVIDENCE

5. The only evidence presented at this hearing was an affidavit of the plaintiff sworn and filed 29 November 2023 (Exhibit “P1”).
   
6. Reference will be made to the appropriate evidence in the discussions on the damages claimed.
   
7. Any damages awarded shall be paid by the second defendant based on vicarious liability, which is not in issue.
   

CONSIDERATION

8. I bear in mind the principles in assessment of damages endorsed by the Supreme Court in the case of William Mel v Coleman Pakalia and Others (2005) SC790, which include the following:
   
   • The plaintiff has the onus of proving his loss on the balance of probabilities.
   • Corroboration of a claim from an independent source is usually required.
   • The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim.
   • 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, and a plaintiff may be awarded nothing.
   • 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.
     

Loss of business

9. The plaintiff has a registered hire car business. The Mark II was part of the fleet of vehicle used in this business, and in fact was on hire at the time of the accident. The vehicle was taken to three different panel workshops after the accident to obtain quotations for costs of repairs. While one workshop assessed the cost of repairs at K26,400.00, they all deemed the vehicle a write-off, and it was therefore not repaired.
   
10. The plaintiff claimed loss of business, which I take to mean income or revenue. According to him, the vehicle was hired out a at the rate of K300 per day. From the date of the accident (29 June 2022) to the date of the entry of default judgement in his favour (8 November 2023), 489 days had lapsed. The plaintiff submitted he lost earnings of K300 each day for the 498 days, equalling a sum of K149,000.00.
    
11. I however consider that loss of business properly concerns loss of profit.
    
12. An affidavit filed by the plaintiff with the writ of summons showed he registered his business, Gonom Transportation, on 28 March 2019. The owner of a small business operated by an ordinary Papua New Guinean is required to keep records of their business and produce relevant records in evidence, including running costs and tax payments, to support a claim for loss of income and profit from the business, ; see Mappa v PNG Electricity Commission (1995) PNGLR 170. I consider this critical in the present case because the Mark II was one of five vehicles that formed the fleet of vehicles used in the business at the time – there were two other sedans, one SUV and a pick-up truck. The present matter is to be contrasted with the situation where the damaged vehicle is the only source of income for a claimant.
    
13. To my mind, evidence answering the following aspects regarding the financial position of the plaintiff’s business is relevant to this discussion but is unfortunately lacking:
    
    • How much revenue did the Mark II earn on average per month before the date of the accident.
    • How much revenue did the business earn on average per month before the date of the accident.
    • How much profit did the business make on average per month before the date of the accident.
    • How much revenue has the business earned on average per month since the date of the accident.
    • How much profit has the business made on average per month since the date of the accident.
      
14. Simply put, there is no independent evidence to corroborate the assertion that the income and profit of the business suffered from the loss of the Mark II. As a registered business, one would expect there to be relevant business records which would answer the questions posed above to substantiate the claim that the Mark II was rented out for K300 a day, and every day, to justify the K149,000.00 pleaded for loss of revenue, but more importantly that the plaintiff lost profit.
    
15. I decline the claim for loss of business.
    

Loss of vehicle

16. In the statement of claim, the plaintiff suggested the value of the Mark II was K29,000.00 at the time of the accident. No evidence was produced to support this claim, but he produced valuations from three motor vehicle dealers issued in November 2023 who gave quotations which the plaintiff stated valued “the current price of Toyota Mark II is K33,000.00”.
    
17. A closer reading of the quotations shows the valuations by reference to other Mark II sedans, not the vehicle involved in the accident:
    

Port Moresby Motors – Toyota Mark II, Petrol, Chassis No. JZX110, Engine No. 1JZ, White in colour

KR Motors Limited – Toyota Mark II, Petrol, Chassis No. GX110, Engine No. IG-7065135, Purple in colour

Heliam Motors – Toyota Mark II, Chassis No. GX110 Engine No. IG

18. There is no indication either as to how the valuation amounts were arrived at, and I ultimately disregard this evidence.
    
19. I note there is no evidence either as how or why K29,000.00 is pleaded in the statement of claim. Evidence that would have been helpful including how much the plaintiff bought the vehicle for and when, is also missing.
    
20. Notwithstanding, the quotations for repairs from 2 Fast Motors dated 7 September 2022 estimated the costs of repairs at K26,400.00. By reference to this evidence, I will accept K29,000.00 as reasonable value for the loss of the vehicle.
    

General damages

21. General damages are intangible, non-monetary losses that do not have an exact monetary value and include mental anguish and distress.
    
22. The plaintiff sought general damages for pain and suffering but but did not set out particulars in the pleadings nor did he provide evidence in relation to this claim except to say it cost him over K7,000.00 to pursue and prosecute this case. Those expenses would be relevant as costs if they are awarded in his favour.
    
23. In a civil action, the law is clear that you cannot raise a claim, defence or relief that has not been properly pleaded; Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694. The Supreme Court in the case of The Central Bank of PNG v Gabriel Tugiau (2009) SC1013 at [55] stressed that a plaintiff can only be awarded damages for pain and suffering for “actual losses and damages which are clearly pleaded and established by appropriate evidence”.
    
24. I do not award any general damages.
    

Interest

25. Pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015, I exercise my discretion to award the usual 8% p.a. interest on the judgement sum to be applied from the date of filing this action (6 December 2022) to the date of the judgement.
    

Legal costs

26. Legal costs shall follow the event, to be paid on a party-party basis.
    

ORDER

27. The Court orders:
    
    • (1) Damages totaling K29,000.00 to be paid by the second defendant to the plaintiff.
    • (2) Interest of 8% p.a. shall apply on the judgement sum from the date of filing this action (6 December 2022) to the date the judgement.
    • (3) The second defendant shall pay the plaintiff’s legal costs of and incidental to this proceeding on a party-party basis, to be taxed if not agreed.
    • (4) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Plaintiff in person
Public Solicitor: Lawyer for the Second Defendant