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Donben v Aihi [2025] PGNC 171; N11295 (16 May 2025)

N11295

PAPUA NEW GUNIEA
[NATIONAL COURT OF JUSTICE]

WS NO. 44 OF 2019

BETWEEN:
TAUJA DONBEN FOR HIMSELF AND ON BEHALF OF THE FAMILY MEMBERS OF LATE AGAI KEBU
Plaintiff

AND:
ALLAN AIHI
First Defendant

AND:
IKIPU AIHI TRADING AS IKIPU AIHI LOCKSMITH
Second Defendant

AND:
CHAN EVARA KAEYO TRADING AS WANE HIRE CARS
Third Defendant

AND:
JOHN BIVI AS DIRDCTOR MINES
Fourth Defendant

AND:
MADANG PROVINCIAL GOVERNMENT
Fifth Defendant

MADANG: NAROKOBI J
8 APRIL, 16 MAY 2025

DAMAGES – Negligence –Motor Vehicle Accident- Appropriate Awards for Each Category of Damages Considered and Awarded.

The proceedings arose from a motor vehicle accident, for which the Plaintiffs now seek several heads of damages, after successfully establishing liability.

Held:

(1) The claim for vehicle repair was reduced as the Plaintiff did not provide three quotes, which is a prudent and fair practice to arrive at a reasonable sum, and to verify the claim, photographs of the damaged vehicle should also have been tendered. Additionally, the Plaintiff’s evidence is not corroborated. The claim of K85,000.00 is awarded at K50,000.00 after factoring in inflation, too.

(2) Loss of business and general damages were awarded at nominal figures due to the lack of independent corroborated evidence at K5,000.00 each.

(3) Total damages awarded at K60,000.00 plus interest and costs, apportioned on a 50-50 basis between the Second Defendant and the Fifth Defendant.

(4) Any claim not covered is deemed as being refused by the court on the basis that it is not supported by the evidence tendered.

Cases cited
Jimmy v Rookes (2013) N5360.
Jonathan Mangope Paraia v The State (1995) N1343
Mel v Pakalia (2005) SC790.

Counsel
Mr B Wak for the plaintiff
No appearance for the defendants

DECISION

1. NAROKOBI J: The Plaintiff file proceedings against the Defendants on 30 January 2019. On 12 October 2020 the statement of claim was amended. Liability against the Second and Fifth Defendant was established on 6 September 2022. For some reason, the Plaintiff did not prosecute their matter until recently. The proceedings arose from a motor vehicle accident, of which the plaintiffs now seek damages under several heads, after successfully establishing liability against the Second and Fifth Defendants, to be borne equally.
   

Background

2. The Plaintiff is Tauja Donben, who sues on his own behalf and on behalf of the family members of late Agai Kebu. The First Defendant is Alan Aihi, the Second Defendant is Ikipu Aihi trading as Ikipu Aihi Locksmith, the Third Defendant is Chan Evara Kaeyo Trading As Wane Hire Car, the Fourth Defendant is John Bivi as Director Mines, and the Fifth Defendant is Madang provincial government.
   

Statement of Claim

3. In the amended statement of claim the Plaintiff says that the vehicle described as a grey Toyota Land Cruiser station wagon 5 door, bearing registration number BEZ 941 (the vehicle) owned by the Third Defendant at the material time on 23 September 2017 was under the hire of Madang Provincial Government, specifically the division of Provincial Mines office.
   
4. While the vehicle was under the custody of the Fourth Defendant it was driven to the Siar area of the North Coast highway of Madang province when the Fourth Defendant was held up and the vehicle keys were stolen, and the criminals assaulted him. The First Defendant was engaged to cut a new key for the vehicle. After the vehicle key was made, the First Defendant was given the vehicle to test the keys. At about 5:00pm on the same day while the First Defendant was driving the vehicle from Newtown area of Madang town along the Modilon Road at Paramed campus, he drove negligently at high speed, and ran into the Plaintiff’s late father's truck, a ISUZU NPR, number plate LBP 373, a blue colour truck (the truck).
   
5. The Plaintiffs claims assessment of general damages, cost of the value of the vehicle, or in the alternative, cost of repairs, business losses, special damages, interests and costs.
   

Liability

6. On 6 September 2022 the court determined the issue of liability. The court made the following orders:
   
   1. The claim against the Third Defendant is dismissed.
   2. The First Defendant is negligent for causing damage to the Plaintiffs’ vehicle, a blue Isuzu diner, registration LBP 373.
   3. Both the First and Fourth Defendants are purportedly acting in the course of employment and the Second and Fifth Defendants are vicariously liable for the actions of its employees.
   4. Liability for damages will be shared equally between the Second and Fifth Defendants.
      

Issues

7. The issue to be determined is what are the categories of damages to be assessed against, and the quantum under these heads of damages, and the subsequent interest to be paid, and if costs is awarded who should bear the costs.
   

Evidence

8. During trial on assessment of damages the Plaintiff relied on one affidavit that is the affidavit of Tauja Donben filed on 2 September 2021.
   
9. The Defendants did not file any affidavits, despite notice being given to them to participate in the trial on assessment of damages.
   
10. In his affidavit Tauja Donben, says that he is the firstborn son of late Agai Kebu and his family members have fully consented to him representing them in these proceedings. The truck was given to his late father at a discounted price of K99,000.00. The vehicle was one year old when it was purchased, on or about 9 October 2015. The truck is described as Isuzu NPR truck registration number L PB373 a blue vehicle. The affidavit goes on to provide details of how the accident occurred, these details are not necessary now because liability has been established.
    
11. The plaintiff says that soon after the accident there was an assessment done by coastal automatic motors who are dealers of Isuzu trucks and they confirmed that the value of the truck at the time of the accident was K85,000.00. He says the truck is normally engaged by his late father as a PMV and it runs from Dogia village to Madang town, which is a distance of about 20 to 25 kilometers from Madang town and it runs at a rate of K10.00 per passenger carrying an average of 40 to 50 passengers per trip twice a day. It is estimated that the PMV truck makes about K400 to K500 per day. From the date of the accident on 23 September 2017 to the date of the affidavit that would be 780 days which means that the total estimated business loss would be K390,000.00. The Plaintiffs have been following up with the Defendants with regard to their claim but they have ignored their request.
    

The Law

12. To determine, the relevant heads of damages, I have had regard to cases such as Jimmy v Rookes (2013) N5360, where damages were awarded for repair of a damaged vehicle, loss of business and general damages. I accept that I will also award damages under the same heads of damages awarded in that case.
    
13. Generally, the principles on assessment of damages, which I consider in this matter are stated in the case of Mel v Pakalia (2005) SC790. I quote these principles from that case:
    
    • 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.)
    • 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.)
    • 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.)
    • 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.)
    • 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.)
    • 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.)
    • 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.)
      
14. I apply these principles when deciding the issue, I have referred to above, which arise from the facts of this case.
    

Heads of Damages

15. From the case laws that I have referred to above, I determine the following to be the heads of damages I should consider:
    
    • Repair of the vehicle or vehicle replacement;
    • Loss of business; and
    • General damages.
      
16. As to how much should be awarded for each category of damages, will depend on the evidence, and comparable case law.
    
17. Any claim not awarded is deemed as being refused as it is not supported by both the case law and the evidence.
    

Repair of the Vehicle

18. In the Jimmy v Rookes case, the Plaintiff was awarded damages after producing three quotes. This is a prudent and a fair approach. It is therefore necessary for the Plaintiff to obtain three quotes. To assist the court, photographs should have been provided, and the evidence of the Plaintiff corroborated by an independent witness. I note from the Plaintiff that the vehicle was purchased in 2015 for K99,000.00, and the accident occurred in 2017. The repair quote for K85,000.00 appears to be outdated and does not provide sufficient information about the nature of repair to be undertaken, but factoring in inflation, and the case of Jonathan Mangope Paraia v The State (1995) N1343, I will award the Plaintiffs K50,000.00.
    

Loss of Business

19. In Jimmy v Rookes, the sum claimed for loss of business was reduced as there were no accounts produced to support the claim. I find this to be the case here too. Making uncorroborated statements about important matters such as the amount of profit made, will mean that the Plaintiff has not met the standard of proof, required on the balance of probability. I will award a nominal sum of K5,000.00 for loss of business.
    

General Damages

20. For general damages to be awarded, there must be evidence of frustration, pain, suffering and inconvenience. Evidence of the plaintiff on this aspect is the inconvenience from following up on the case. I will also award a nominal sum of K5,000.00. The Plaintiffs are not the actual owner of the truck, and sues in a representative capacity, and they have not all filed supporting affidavits, detailing their pain, suffering, frustration and inconvenience.
    

Total Damages Awarded

21. Having said all that, the total damages I award is K60,000.00, composed of K50,000.00 for repair of the vehicle, K5,000.00 for loss of business, and K5,000.00 for general damages.
    

Interests and Costs

22. Following my ruling in Sorum v Aloi (2020) N8416, I will award interest at 8% per annum from the date liability was entered (to the date of judgment), for the reason, that the Plaintiff did not prosecute his claim for damages expeditiously. This would mean K60,000.00 x 8% = K4,800.00 x 2.5 years, giving a total interest of K12,000.00.
    
23. I will award costs in favour of the Plaintiff in the fixed sum of K20,000.00 as the claim went undefended.
    

Apportionment of Liability

24. The total damages awarded plus interest is K72,000.00.
    
25. Based on my findings on liability on 6 September 2022, the Second Defendant will pay K36,000.00 and the Fifth Defendant will pay K36,000.00.
    
26. For costs, the second defendant will pay K10,000.00 and the Fifth Defendant will pay K10,000.00.
    

Orders

27. The final orders of the court are as follows:
    
    1. The Second Defendant pays the Plaintiff a judgment sum of K36,000.00 inclusive of 8% interest from the date of entry of liability to the date of judgment.
       
    2. The Fifth Defendant pays the Plaintiff a judgment sum of K36,000.00 inclusive of 8% interest from the date of entry of liability to the date of judgment.
       
    3. The Second Defendant and the Fifth Defendant pays the Plaintiffs costs in the fixed sum of K20,000.00 which shall be shared equally, that is, K10,000.00 each.
       
    4. Any claim not covered is deemed as being refused by the court on the basis that it is not supported by the evidence tendered.
       
    5. The matter is considered determined, and the file is closed.
       
    6. Time for the entry of orders is abridged.
       
28. Judgment and orders accordingly.

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Lawyers for the plaintiff: Bradley & Company Lawyers