Lawyer to pay K92,300 to client

National, Normal

A LAWYER and his firm, Bilding Tabai and Lawrence Acanufa, have been ordered by the National Court in Madang to pay their former client a total judgment lump sum of K92,348.16 for negligence of duty in 2008.
The plaintiff, Otto Benal Magiten, a private (PMV) bus operator between Madang and Lae engaged the lawyers to represent him in court for a breach of contract between him and Ela Motors in 2001.
His lawyers did not successfully handle the case.
The court in Madang last Friday stated that Otto Benal Magiten succeeded in 2008 in establishing a cause of action in negligence against his former lawyers.
The court ruled the lawyers were negligent in that they failed to take account of the six-year limitation period in a breach of contract case that the plaintiff-had in 2001 launched against Ela Motors, Madang.
As a result of their negligence, Otto Benal Magiten case against Ela Motors was dismissed.
Otto Benal Magiten then sued his former lawyers.
Justice David Cannings, in assessing damages in the plaintiff’s favour, said: “The plaintiff succeeded in establishing a cause of action in negligence against his former lawyers, which had resulted in the plaintiff failing in a breach of contract action against a third party.
“This was a trial on assessment of damages against the lawyers.”
Justice Cannings took note of the plaintiff’s submission that K100,000 should be awarded to compensate the pain, suffering and frustration caused by the negligence of his former lawyers and their refusal to acknowledge that they did anything wrong and their intransigence to his pleas to settle the case out of court.
The judge then awarded a direct entry of judgment granting:
* K72,147 damages, payable by the defendants to the plaintiff;
* K20,201.16 interest payable by the defendants to the plaintiff;
* K92,348.16 being a total judgment lump sum; and
* Costs of the proceedings shall be paid by the defendants to the plaintiff on a party to party basis, to be taxed if not agreed.
The matter stemmed from a case against Ela Motors on their alleged failure to repair the plaintiff’s
PMV bus within the period which they agreed to.
In January 1995 his bus was involved in a collision.
He took it to Ela Motors for repairs. They agreed to have it back on the road within three weeks.
However, it took more than three months to repair. This caused the plaintiff cash flow problems. He could not service his bank loan and the bus was repossessed and he went out of business.
In January 2001 he commenced proceedings, WS No 74 of 2001, against Ela Motors claiming damages for breach of contract.
In April 2001, the case was dismissed, on the ground that the defendant was incorrectly named, when the plaintiffs’ lawyers negligently consented to it being dismissed, contrary to the plaintiff’s instructions.
The plaintiffs’ lawyers compounded their negligence by filing fresh proceedings in May 2001, WS No 636 of 2001, this time, naming the defendant correctly, by which time the six-year limitation period under Section 16 of the Frauds and Limitations Act had lapsed by more than two months.
The plaintiff’s case was dismissed and he was again ordered to pay the defendants’ costs.