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Pias v Kodi [2006] PGNC 191; N2972 (21 February 2006)

N2972

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 171 OF 1998

JOHN PIAS
Plaintiff

V

MICHAEL KODI, BERNARD PREGWART
AND AUGUST TIONA
First Defendant

LEO NUIA, THE PAPUA NEW GUINEA
DEFENCE FORCE COMMANDER
Second Defendant

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Mt Hagen: Cannings J
2004: 5, 7, 13, 18 October
2006: 21 February

JUDGMENT

DEFENCE FORCE – soldiers committing unlawful assault against civilian – liability established by entry of default judgment – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort.

DAMAGES – general damages for eye injury – damages for lost income – special damages – exemplary damages – whether appropriate to award exemplary damages.

Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel. He lost the sight of one eye. The plaintiff commenced proceedings against them, plus the Commander of the Defence Force and the State. He secured a default judgment. A trial was conducted on assessment of damages.

Held:

(1) The default judgment resolved all questions of liability in respect of the matters pleaded in the statement of claim.

(2) Therefore the Defence Force soldiers unlawfully assaulted the plaintiff and breached his constitutional rights. The State is vicariously liable to the plaintiff for the consequences of their unlawful conduct.

(3) The plaintiff was awarded general damages for the pain and suffering associated with the loss of vision in his right eye (K60,000.00); special damages (K45,000.00); past economic loss for lost salary in the period from the date of the incident to the date of judgment (K67,548.00); and damages for distress and mental suffering arising from the trauma associated with the manner and circumstances in which he was injured (K30,000.00). The total award of damages was K202,548.00.

(4) The plaintiff's claims for substantial sums in respect of future economic loss and lost business income were refused due to lack of evidence.

(5) The plaintiff's claims for additional damages for breach of constitutional rights and trespass were refused as a plaintiff is only compensated once and does not obtain a higher award of damages by establishing multiple causes of action.

(6) Interest was awarded in addition to the total award of damages.

(7) Costs were awarded to the State because the plaintiff was granted leave to amend the statement of claim during the trial.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L)
Albert Baine v The State (1995) N1335
Browne v Dunn (1893) The Reports 67
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Dorothy Kesla Tuba v The State (1997) N1581
Haiveta v Wingti (No 1) [1994] PNGLR 160
James G Koimo v The State [1995] PNGLR 535
John Pias v Michael Kodi and Others (2004) N2690
Jonathan Mangope Paraia v The State (1995) N1343
Joseph Dikini v John Wamel (1997) N1562
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Linda Stanley v Mathew Kawa and The State (2005) N2865
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
MVIT v Pupune [1993] PNGLR 370
MVIT v Reading [1988] PNGLR 236
MVIT v Tabanto [1995] PNGLR 214
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Peter Wanis v Fred Sikiot and The State (1995) N1350
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Reading v MVIT [1988] PNGLR 236
Sale Dagu v The State (1995) N1316
Sidi Adevu v MVIT [1994] PNGLR 57
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Takie Murray v Norman Kinamur [1983] PNGLR 446
The State v Kevin Anis (2003) N2360
The State v Michael Kodi, CR No 1170 of 1997, 20.03.98, unreported
The State v Pennias Mokei (No 1) (2004) N2606
The State v Peter Oh Piom Mo [1998] PNGLR 66
Tumunda Toropo v Jack Awabe and The State (2001) N2116
Waima v MVIT [1992] PNGLR 254
William Mel v Coleman Pakalia and Others (2005) SC790
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

Abbreviations

The following abbreviations appear in the judgment:

AJ – Acting Justice
CJ – Chief Justice
DCJ – Deputy Chief Justice
Dr – Doctor
J – Justice
kg – kilogram
Ltd – Limited
Mt – Mount
MVIT – Motor Vehicles Insurance (PNG) Trust
N – National Court judgment
No – number
pf – per fortnight
PNG – Papua New Guinea
PNGBC – Papua New Guinea Banking Corporation
PNGDF – Papua New Guinea Defence Force
PNGLR – Papua New Guinea Law Reports
Pty – Proprietary
SC – Supreme Court judgment
UPNG – University of Papua New Guinea
% – percentage

Tables

The following tables appear in the judgment:

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for assault and breach of constitutional rights following the entry of default judgment in favour of the plaintiff.

Counsel

A Manase, for the plaintiff
J Poya, for the 2nd and 3rd defendants
No appearance for the 1st defendant

21 February, 2006

1. CANNINGS J: INTRODUCTION: This is a case about assessment of damages. The plaintiff, John Pias, has already obtained a default judgment on the issue of liability, with damages to be assessed.

BACKGROUND

2. The plaintiff was assaulted and injured by three Papua New Guinea Defence Force soldiers at the Plumes and Arrows Hotel, Mt Hagen, on 5 July 1997. He claims that they committed a common law assault on him and submitted him to torture, inhuman treatment and/or treatment inconsistent with respect for his inherent dignity as a human person, contrary to his Basic Rights under Section 36 of the Constitution.

3. On 24 February 1998 a writ of summons was filed. The main relief sought by the plaintiff was damages. At that time the plaintiff was represented by Dowa Lawyers.

4. In March 1998 one of the first defendants, Michael Kodi, was convicted by Sawong J of the offence of unlawfully causing grievous bodily harm to the plaintiff, contrary to Section 319 of the Criminal Code. He was sentenced to four years imprisonment. (The State v Michael Kodi, CR No 1170 of 1997, National Court, 20.03.98, unreported.) Sawong J explained the circumstances of the assault as follows:

The accused was one of the soldiers called out to assist the police in providing security in the 1997 general election. At that time he was a commissioned officer of the PNGDF. On their way to Mt Hagen they bought and consumed some alcohol. When they left Wabag the accused and his solider colleagues were in uniform and were carrying their firearms with them. They arrived in Mt Hagen and went to the Juma Lodge. There they consumed some more alcohol. Thereafter they left that lodge and drove to the Plumes and Arrows Hotel at Kagamuga Airport just outside of Mt Hagen city. When they arrived at that hotel they were in a drunken state. When they arrived at the gate of the hotel, the security men refused entry. The accused and his accomplices then became more aggressive and they used their firearm to and threaten the security guards. The security guards in fear of their lives opened the gate and the accused and his accomplices entered the hotel premises. Upon entering the said premises they wanted to go into the bar but once again, because of their drunken state and behaviour the security guards once again refused them entry into the bar and pokies area. Once again the accused and his accomplices threatened the security guards with their weapons whereupon the door was opened and the accused and his accomplices went into the bar area. As soon as they entered the bar they started assaulting people who were already in that part of the hotel premises and damaged some poker machines. In the course of the turmoil inside the bar, the victim was shot at, but the shot missed him. However, the accused using his firearm assaulted the victim on his face. The victim was rendered unconscious by the assault. He suffered a very severe injury to the right eye, it being completely damaged. The victim lost his right eye completely. The victim also suffered some other injuries on his face.

5. On 19 June 1998 the second defendant, who was but is no longer the Commander of the Defence Force, and the third defendant, the State, filed a notice of intention to defend and a defence. At that time they were represented by the Solicitor-General. The first defendants, who were officers of the Defence Force at the time of the incident, were not represented. They remain unrepresented.

6. On 2 May 2001 Pato Lawyers commenced acting for the plaintiff.

7. On 5 November 2001 the plaintiff's statement of claim was amended pursuant to a court order. A new, amended statement of claim was filed.

8. The defendants failed to file a defence and on 3 September 2003 default judgment was entered against them, with damages to be assessed.

9. In November 2003 the principal affidavits were sworn, filed and served on the defendants.

10. In September 2004 the case was set down for trial in October 2004.

11. On 1 October 2004 Paul Paraka Lawyers commenced acting for the defendants.

12. On 5 October 2004 the trial on assessment of damages commenced in Mt Hagen. Three witnesses gave oral evidence. They were each cross-examined on affidavits that they had sworn, which were admitted into evidence. A number of other affidavits and documents were admitted. The defendants counsel, Mr Poya, objected to some parts of the affidavits being tendered. He submitted that evidence was being given about things not included in the pleadings, eg details of the plaintiff's lost income. He relied on the rule of pleadings and evidence that if there is nothing in the pleadings of a party about an alleged fact, no evidence in support of it can be adduced at the trial. I overruled those objections, as I considered that the pleadings were sufficiently broad to encompass the matters on which evidence was being led. I added that such issues could still be made the subject of submissions. The plaintiff's counsel, Mr Manase, closed the plaintiff's case. Mr Poya indicated that the defendants had no evidence to call. So the evidence was all in. The trial was adjourned to the afternoon of 7 October 2004 for submissions.

13. On the morning of 7 October 2004 the plaintiff's lawyers filed a notice of motion by which the plaintiff sought leave to amend the statement of claim. The case was adjourned to 13 October 2004 to deal with the motion.

14. On 13 October 2004 I received written and oral submissions on the motion and reserved a ruling, which I gave on 18 October 2004. I granted leave for the statement of claim to be amended. However, I ordered that the plaintiff pay the defendants' costs of the whole trial, irrespective of the result (John Pias v Michael Kodi and Others (2004) N2690).

THE AMENDED STATEMENT OF CLAIM

15. The statement of claim, amended in accordance with the order of 18 October 2004, describes the circumstances in which the plaintiff was unlawfully assaulted by the three Defence Force Soldiers who together comprise the first defendant and the nature of the injuries the plaintiff sustained. It seeks the following remedies:

• unspecified damages pursuant to the Wrongs (Miscellaneous Provisions) Act;
  
• lost salary income, past and future, of K811,200.00;
  
• special damages of K28,948.65;
  
• lost business income of K1,133,892.00;
  
• damages for distress, frustration and psychological suffering;
  
• aggravated damages for breach of constitutional rights;
  
• interest;
  
• such other orders as the court deems fit.
  

THE PLAINTIFF'S EVIDENCE

Outline

16. Seventeen documents were admitted into evidence. Five of them (exhibits A, N, O, P and Q) were affidavits and three deponents (the plaintiff John Pias, Walter Perdacher and Mark Yakka) gave oral evidence and were subject to cross-examination.

Documentary evidence

17. The evidence is summarised in table 1. Column 1 gives the exhibit number, column 2 describes the document and column 3 summarises the contents.

TABLE 1: SUMMARY OF DOCUMENTARY EVIDENCE

Oral evidence

18. The first witness was the plaintiff John Pias. He adopted his affidavit in examination-in-chief. He was the conduit through which exhibits B-N (various documents evidencing his medical treatment and associated costs and his source of pre-accident income) were introduced.

19. In cross-examination John Pias stated that after the incident he was taken to Mt Hagen hospital. He does not know who took him there as his right eye had come out of its socket and he was unconscious. Mr Poya asked him whether he had decided on his own accord to go from Mt Hagen to Port Moresby and then to Sydney for treatment. He replied that his relatives made those decisions. He was badly damaged and not thinking straight. Mr Poya put it to him that the decisions were made by his relatives not by doctors. He replied that the doctors could not do the right operation in Port Moresby. He had to go to Sydney. He was accompanied by Mark Yakka and a brother, Kuia Reto.

20. Mr Poya asked about his pre-injury income. He said that he was receiving K1,200.00 per fortnight from Wally Perdacher. The coffee season goes right through the year. He does not have pay slips as he was paid in cash.

21. In re-examination John Pias said that, as pointed out in his affidavit, he received commissions on top of his fortnightly salary.

That ended John Pias's evidence.

22. The second witness for the plaintiff was Walter Perdacher. He adopted his affidavit in examination-in-chief. He has known John Pias since the 1970s. He was still buying coffee and managing Enga Coffee Factory immediately prior to the time he was injured in July 1997. Walter Perdacher confirmed that he was paying both salary and commission. It was a substantial amount of money. About a million kina or so. The amount he refers to in his affidavit is not a typographical error. The payments only stopped when the incident occurred in July 1997. After that, John Pias never brought any coffee. If he had brought coffee, as in the past, he would have paid him. He was a reliable and hard working supplier.

23. In cross-examination Walter Perdacher stated that there was always a good supply of coffee at Wapenamanda.

24. There was no re-examination. That ended Walter Perdacher's evidence.

25. The third witness for the plaintiff was Mark Yakka. He adopted his affidavit in examination-in-chief.

26. In cross-examination Mark Yakka stated that John Pias was prior to his injury in July 1997 earning a substantial amount of income from three sources: salary, vehicle hire and commission. Mark Yakka said that prior to 1997 he did not prepare a cash flow for John Pias. However, all the actual documents on which to calculate the cash flows were available.

27. There was no re-examination. That ended Mark Yakka's evidence.

28. The plaintiff's case was then closed.

THE DEFENDANT'S EVIDENCE

29. The defendant offered no evidence.

ROLE OF TRIAL JUDGE WHEN MAKING ASSESSMENT OF DAMAGES FOLLOWING ENTRY OF DEFAULT JUDGMENT

30. This issue was recently addressed by the Supreme Court in William Mel v Coleman Pakalia and Others (2005) SC790, Los J, Jalina J, Cannings J. The court endorsed the principles expressed by Kandakasi J in the National Court in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182 and by the Supreme Court in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J. The trial judge's role is:

• to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; and
  
• if the facts and cause of action are reasonably clear liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;
  
• only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability;
  
• the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;
  
• any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
  

31. Other principles to apply when the court is assessing damages can be summarised as follows:

• 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 AJ.)
  
• 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.)
  
• 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.)
  
• 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 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.)
  

THE CAUSE OF ACTION

32. The plaintiff has pleaded two causes of action: common law trespass, constituted by assault and battery, and breach of constitutional rights.

Common law

33. He brings the common law action for assault and battery within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). The common law of assault and battery has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.

34. I have checked the statement of claim and I am satisfied that it adequately pleads the facts to support the elements of the tort of assault and battery. That is:

• the first defendants threatened the plaintiff (the assault);
  
• they intentionally and directly applied force to the plaintiff (the battery)
  
• thereby causing him bodily injury;
  
• there was no lawful justification for the first defendants' actions.
  

35. I am satisfied that the third defendant, the State, is vicariously liable for the assault. I can detect an argument that would have expunged the State's liability: what the first defendants did was so far outside their normal and expected lawful pattern of behaviour as soldiers that the State should not be held liable. However, there was a substantial amount of evidence that the first defendants were engaged in a lawful call-out in aid of the civil power for the purposes of maintaining security for the 1997 general election. They were in uniform when the incident happened. Therefore, I will not inquire further. I will treat the default judgment as cementing the State's vicarious liability. I reach the opposite conclusion, however, in relation to the second defendant, the then Commander of the Defence Force. There is nothing in the statement of claim to support the conclusion that he should be held vicariously liable. I declare that the second defendant is not vicariously liable.

Breach of constitutional rights

36. The plaintiff claims that the soldiers who assaulted him (the first defendants) breached his Basic Rights under Section 36 of the Constitution.

37. Section 36 (freedom from inhuman treatment) states:

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

(2) The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.

38. I query whether Section 36 is the appropriate provision for the plaintiff to rely on. However, as default judgment has been entered I will not inquire further. I will deal with the case as if the plaintiff has established liability against the first and third defendants for breach of Section 36.

WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED?

39. I will set out in the following table the ten categories of damages the plaintiff is claiming, as set out in Mr Manase's submission. They do not correspond exactly with the categories of relief sought in the statement of claim amended pursuant to the order of 18 October 2004. I will comment on that later. The table also summarises the defendant's response, as per Mr Poya's submission.

TABLE 2: PLAINTIFF'S CLAIMS AND DEFENDANTS' RESPONSE

40. I will now set out and consider the submissions and make an assessment in relation to each category of damages.

CATEGORY NO 1: GENERAL DAMAGES

Plaintiff's submission

41. Mr Manase submitted that the court should work on the basis that the plaintiff has lost 100% vision in his right eye. He referred to two cases of particular relevance:

• Takie Murray v Norman Kinamur [1983] PNGLR 446, National Court, McDermott J, surgical removal of left eye = K20,000.00 general damages; and
  
• Sale Dagu v The State (1995) N1316, National Court, Salika J: 90-95% loss of vision in right eye = K20,000.00 general damages.
  

42. Taking into account the effects of inflation K80,000.00 should be awarded, Mr Manase submitted.

Defendant's submission

43. Mr Poya conceded the fact that the plaintiff has lost 100% vision in his right eye. But he urged caution in comparing this case with previous cases where plaintiffs had been awarded substantial amounts of general damages because they had multiple facial and other bodily injuries in addition to their loss of vision.

Consideration

44. General damages represents pain and suffering and loss of amenities of life associated with the plaintiff's loss of 100% vision in his right eye. Both counsel cited many previous cases to demonstrate what would be a fair figure. Most of them are more than ten years old. I will assess general damages on the basis that the plaintiff is permanently blind in one eye and that he suffered some other facial injuries in the incident of July 1997 that have largely healed. I reviewed the precedents for general damages for eye injuries in a recent Mt Hagen case, Linda Stanley v Mathew Kawa and The State (2005) N2865. I accept Mr Manase's submission that the effects of inflation have to be considered when comparing awards of damages in previous cases. (See Tumunda Toropo v Jack Awabe and The State (2001) N2116, National Court, Hinchliffe J.)

45. Two of the more recent cases are:

• Joseph Dikini v John Wamel (1997) N1562, National Court, Sevua J: 100% loss of vision in one eye = K35,000.00 general damages; and
  
• Dorothy Kesla Tuba v The State (1997) N1581, National Court, Woods J: 84% loss of vision in one eye = K20,000.00 general damages.
  

46. have considered that the purpose of an award of damages is to compensate a person; to put them as far as possible in the same position they would have been in had they not suffered the injuries incurred because of another person's negligence. Damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364, National Court, Brunton AJ). In Linda Stanley's case I awarded K25,000.00 to a woman who lost 50% vision in one eye due to the negligence of police. I consider that losing complete vision in an eye is worse than twice the pain and suffering associated with losing 50% vision.

Assessment

47. I award K60,000.00 general damages.

CATEGORY NO 2: SPECIAL DAMAGES

Plaintiff's submission

48. Mr Manase submitted that the plaintiff should be awarded K28,948.65, the amount pleaded in the statement of claim. This was to cover:

• hospital fees in PNG;
• domestic air travel in PNG;
• accommodation and meals in PNG for relatives and friends;
• specialist medical treatment in Australia;
• air travel to Australia for the plaintiff and two escorts – two trips;
• meals and accommodation in Sydney;
• transport in Sydney.
  

49. Mr Manase conceded that not all receipts and invoices for all these expenditure items were in evidence but argued that the amount of the claim is reasonable.

Defendant's submission

50. Mr Poya submitted that the plaintiff had proven only a little over K20,000.00 worth of expenditure. He also queried the evidence on the need for the plaintiff to make the trip to Australia for surgery.

Consideration

51. The evidence before the court points to the plaintiff being involved in a traumatic, life-threatening incident, for which he was not to blame. I accept that he was, in effect, medically evacuated to Sydney for emergency surgery. The particular amounts of each expenditure item have been itemised in Mr Manase's submission. Most of the claim is supported by evidence. As to the parts that are not, I am prepared to accept Mr Manase's submission that putting the evidence in context, the amounts do not seem exaggerated. The plaintiff and his relatives did spend what was necessary to get him treated and operated upon. I have no hesitation in upholding the claim for special damages.

52. I point out that Mr Manase did not ask for the effects of inflation to be taken into account. I think that should be done. The expenditure was incurred in 1997, almost nine years ago. I will allow a premium of 50% to take account of inflation since then. I will also round up the figure for mathematical convenience.

Assessment

53. I award K45,000.00 special damages.

CATEGORY NO 3: PAST ECONOMIC LOSS – SALARY

Plaintiff's submission

54. Mr Manase submitted that K624,000.00 should be awarded but to be frank I cannot work out where he got this figure from. I think he is submitting that the court should make an assessment for the plaintiff's lost salary as manager of Enga Coffee Factory on the basis that the plaintiff was earning K1,200.00 for fortnight (excluding transport and commission income). The court should then distinguish between salary lost (a) from the date of the incident (July 1997) to the date of judgment (February 2006) and (b) from the date of judgment to the end of the plaintiff's working life.

55. If that calculation is made it would result in a figure, for the period from the date of the incident to the date of judgment, of:

K1,200.00 pf x 26 = K31,200.00 per year x 8.66 years = K270,192.00.

That is a lot less than K624,000.00 and explains why I find it unfathomable.

Defendant's submission

56. Mr Poya submitted that there was no evidence that the plaintiff was, in fact, paid K1,200.00 per fortnight. There are no pay slips in evidence. The claim that he was paid that amount each and every fortnight prior to his injury is suspicious as it takes no account of the variation in the coffee seasons. He was prepared to concede only K600.00.

Consideration

57. I agree with Mr Poya that there is a dearth of evidence to support this part of the claim. The plaintiff's sworn evidence is that he was paid K1,200.00 per fortnight. Walter Perdacher states the same thing. But where is the corroboration? There are no pay slips, as Mr Poya points out. There is no documentary evidence at all to verify the payments. The plaintiff says he was paid in cash. Even so, some sort of documentary record of the payments must exist, if the payments are genuine. A summary of the payments should have been in possession of either the plaintiff or Mr Perdacher. The court should have been able to see the statements of earnings forms showing remission of salary or wages tax to the Internal Revenue Commission, as required by the Income Tax Act.

58. Mr Manase argued in the opening parts of his submission that if the court is thinking that there is a gap in the evidence the plaintiff should obtain the benefit of the rule in Browne v Dunn (1893) The Reports 67. This rule, applied consistently in Papua New Guinea in both civil and criminal proceedings, can be expressed in many different ways. For example:

• if counsel does not put things to a witness in cross-examination, there should be no complaint if the witness is believed (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L), National Court, Wilson J);
  
• a party's failure to adhere to the rule is not necessarily fatal to that party's case but will go to the question of the weight to be attached to the unchallenged testimony (The State v Peter Oh Piom Mo [1998] PNGLR 66, National Court, Jalina J);
  
• any matters upon which it is proposed to contradict the evidence in chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction; and failure to do this may be held to imply acceptance of the evidence in chief (Sidi Adevu v MVIT [1994] PNGLR 57, Supreme Court, Kapi DCJ, Andrew J, Sakora J; though note that in that case the rule in Browne v Dunn did not provide a good ground of appeal against a decision of the National Court to refuse a claim as all that the defendant had done was to put the plaintiff to proof and the trial judge held properly that the plaintiff had failed to prove his case on the balance of probabilities);
  
• evidence not challenged should be taken to have been accepted (Haiveta v Wingti (No 1) [1994] PNGLR 160, National Court, Sheehan J);
  
• in order for a party's claim to be considered credible, the party must in fairness put its case to the other side's witnesses by way of cross-examination (The State v Kevin Anis (2003) N2360, National Court, Kandakasi J);
  
• if a counsel intends to submit that a witness has lied, the counsel must put it directly to the witness that he or she has lied so as to give the witness the opportunity to explain (The State v Pennias Mokei (No 1) (2004) N2606, National Court, Cannings J).
  

59. Mr Manase's argument was that the three witnesses whose evidence forms the basis of the plaintiff's claim for lost salary and other income (the plaintiff John Pias, Walter Perdacher and Mark Yakka) were not subject to rigorous cross-examination as to the veracity of the amounts of money being claimed as lost. Nor was their credibility tarnished by cross-examination. I have difficulty with that argument for two reasons. First, I thought that Mr Poya's cross-examination did expose the lack of corroboration to support the claims. He drew out of the plaintiff and Mr Perdacher that salary was paid in cash and no records were kept. Mr Poya also succeeded in demonstrating that Mark Yakka's evidence was actually just a calculation of cash flows and income streams. It was really only evidence of what various amounts added up to. It was not primary evidence that the amounts being used as the basis of the calculations were ever actually received by the plaintiff. The second reason Mr Manase's argument lacks force is that the rule in Browne v Dunn is only a rule of thumb to guide a tribunal of fact in deciding what amount of weight to give to a body of evidence. If the evidence, by itself, lacks weight and is insufficient to prove an issue of fact the rule in Browne v Dunn will not get it over the line constituted by the relevant standard of proof, which in this case is the civil standard: on the balance of probabilities.

60. The fact that default judgment has been entered does not advance the plaintiff's case. As the cases cited earlier emphasise: corroboration of a claim is required, even when default judgment is entered; and even when the defendant fails to present any evidence disputing the claim. 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.

61. The lack of corroboration of the claim regarding lost salary income means that I must exercise extreme caution. It would not be unreasonable to award nothing. However, I am prepared to accept that it has been proven that the plaintiff was employed. I cannot accept that he was receiving K1,200.00 per fortnight. I will discount that sum by 75%.

Assessment

62. I will award damages for lost salary from the date of the incident to the date of judgment as follows:

K300.00 pf x 26 = K7,800.00 per year x 8.66 years = K67,548.00.

CATEGORY NO 4: FUTURE ECONOMIC LOSS – SALARY

Plaintiff's submission

63. Mr Manase submitted that K486,000.00 should be awarded but, again, the basis of the amount escapes me.

Digression

64. This is a timely point at which to digress and make some general criticism of Mr Manase's submission. Apart from exposing some serious evidentiary problems (highlighted by the assessment of damages for past economic loss) the submission is ill-structured. It does not dovetail into the statement of claim, as a submission on damages always should. This is apparent from table 2, which compares the categories of damages sought in the statement of claim (column 1) with the categories of damages set out in the 'summary of claim' at the end of Mr Manase's submission (column 2). This is most unfortunate given that the court granted leave to amend the statement of claim during the course of the trial.

65. The court's task of understanding Mr Manase's submission has been made even harder because the categories of damages depicted in the 'summary of claim' (which provide the structure of the part of this judgment that deals with the actual awarding of damages) do not match the major headings in the meat of the submission. This is also demonstrated by table 2. Compare the categories in column 2 with those in column 3. They do not correspond perfectly, as they should.

TABLE 3: COMPARISON OF CATEGORIES OF DAMAGES
SOUGHT IN STATEMENT OF CLAIM AND SUBMISSION

66. The court's task has become a mix-and-match exercise. It is almost as though the submission has been set out using a special code that somebody failed to pass on to the judge. That completes the criticism of the Mr Manase's submission and the digression.

Defendant's submission

67. Mr Poya made, I think, the same point about future salary loss as he did about past salary loss. However, I have to say "I think", as I have to be also critical of his submission. In his résumé, he appears to concede that the plaintiff can be awarded K187,200.00 for 'loss of past and future salaries'. I do not understand how or why Mr Poya made such a concession. I cannot find it explained in the meat of his submission. Either I have misunderstood the submission or a typographical error has been made. In either case I am not bound by counsel's concession. I will disregard it.

Consideration

68. In the case of pre-judgment salary loss, I assessed damages on the basis of the notional sum of K300.00 per fortnight. As I said, I could quite reasonably have rejected the claim completely on the ground of lack of corroboration. Different considerations now arise. I am asked to assess salary losses from the date of judgment onwards. I am faced with the same problem: lack of corroboration. But the different consideration is that when assessing past losses it was presumed that the plaintiff could not work at all as a manager or coffee buyer. That was a realistic, but perhaps generous, presumption. He is physically disabled to a certain extent. But not to the extent that he is unable to work as once he did. With his vision still good in one eye, there seems nothing really to stop him working and earning an income as he did before.

Assessment

69. I will therefore award nothing for future salary loss.

CATEGORY NO 5: LOSS OF COMMISSION

Plaintiff's submission

70. Mr Manase submitted that the evidence showed that the plaintiff was a coffee buyer who prior to his injury was paid five toea per kilogram of coffee. Based on the amount of coffee he bought and the commission he received in 1996 (the last full year before he was injured), this generated an annual income of K141,969.00. Mr Manase submitted that the plaintiff was about 18 months into fulfilling a five-year contract when he was injured. So he should be compensated with damages of K141,969.00 x 3.5 = K496,892.00

Defendant's submission

71. Mr Poya submitted that this sum has not been pleaded so nothing can be awarded.

Consideration

72. I partly agree with Mr Poya. This claim has been inadequately particularised in the amended statement of claim. However, the amended statement of claim does plead "loss of business income", so I will not reject the claim on that basis.

73. I will, however, reject it for other reasons. I am now being required to assess lost business income when there is almost no evidence in proper form before the court. All that has been admitted into evidence is an inch-thick bundle of receipts issued by Enga Coffee Factory which is supposed to, I think, verify the amount of coffee purchased by the plaintiff in 1996 and 1997. What did Mr Manase expect me to do with them? Sit down for hours on end and sift through them with an abacus? What was required was a proper set of accounts properly verified by an independent auditor. As I indicated earlier, Mark Yakka's financial analyses do not fit into that category. All that his evidence does is suggest that he is very good at preparing Excel spreadsheets. Where a plaintiff is claiming damages for lost business income it is almost mandatory – in the absence of some other independent corroborative evidence – that audited accounts be adduced. Alternatively, an assessment of income tax under the Income Tax Act would have been good evidence.

74. I do not feel at all comfortable making a guess, given the state of the evidence.

Assessment

75. I will therefore award nothing for loss of commission.

CATEGORY NO 6: LOSS OF MONIES ADVANCED

Plaintiff's submission

76. Mr Manase submitted that K91,000.00 should be awarded under this heading but offers no proper explanation of what it is meant to represent.

Defendant's submission

77. Mr Poya submitted that this sum has not been pleaded so nothing can be awarded.

Consideration

78. This claim is not supported by the pleadings or the evidence.

Assessment

79. I will therefore award nothing for loss of monies advanced.

CATEGORY NO 7: LOSS OF TRANSPORT HIRE

Plaintiff's submission

80. Mr Manase submitted that the evidence showed that Pous Trading hired the plaintiff's two Dyna trucks at a rate of K700.00 per day for five days each week. Based on the amount of trips in 1996 (the last full year before he was injured), this generated an annual income of K182,000.00. Mr Manase submitted that the plaintiff was about 18 months into fulfilling a five-year contract when he was injured. So he should be compensated with damages of K182,000.00 x 3.5 = K637,000.00, Mr Manase submitted.

Defendants' submission

81. Mr Poya submitted that this sum has not been pleaded so nothing can be awarded.

Consideration

82. I make the same comment in relation to this part of the claim as for lost commission income. The evidence is in such an inadequate state it is unsafe to award anything. When assessing damages for lost business income, there are some minimum evidentiary standards the court must insist on. If it allows such amounts to be based on guesswork or fancy spreadsheets it will be encouraging the black economy, ie markets where people operate large businesses and generate large cash flow without paying tax.

Assessment

83. I will therefore award nothing for lost income from transport hire.

CATEGORY NO 8: BREACH OF CONSTITUTIONAL RIGHTS, INCLUDING EXEMPLARY DAMAGES

Plaintiff's submission

84. Mr Manase asked the court to make a separate assessment for these heads of damage under Section 58 (compensation) of the Constitution.

85. Section 58 is the provision that specifically allows the National Court to award damages against any person or body that has breached another person's constitutional or human rights. In the present case, as pointed out earlier, it has been established by the entry of default judgment that the soldiers who assaulted the plaintiff breached the plaintiff's right to freedom from torture under Section 36. The argument therefore is that the court should sanction that breach by awarding damages under Section 58, which states:

(1) This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).

(2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

(3) Subject to Subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.

(4) Where the infringement was committed by a governmental body, damages may be awarded either—

(a) subject to Subsection (5), against a person referred to in Subsection (3); or

(b) against the governmental body to which any such person was responsible,

or against both, in which last case the court may apportion the damages between them.

(5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if—

(a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and

(b) the action taken was genuinely believed by that person to be required by law,

but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.

Defendant's submission

86. Mr Poya submitted that if the plaintiff is already being awarded damages for breach of his common law rights, he should get nothing more for breach of his constitutional rights. He referred to two decisions of Injia J, as he then was, in support of that proposition.

87. In James G Koimo v The State [1995] PNGLR 535 his Honour stated:

I have already made an award for compensatory damages for loss and destruction of property in the sum of K37,312.18. That compensation should also cover violation of constitutional rights under ss 44, 49, and 53, because these violations were committed in the same act. The illegal search and invasion of privacy in the house becomes merely academic when the very property is destroyed or lost. I do not think separate damages under the category of violation of constitutional rights is justified, for to so do would unjustly enrich the plaintiff twice for the same properties which were searched and seized or destroyed.

88. In Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247 his Honour stated:

In my view, as I have already awarded compensatory damages for destruction of the very same properties which were searched, seized and destroyed and I have also awarded exemplary damages, there would be a duplication of damages if I were to award another round of damages for breach of constitutional rights ... Therefore, I refuse to award any damages for violation of constitutional rights.

Consideration

89. I uphold Mr Poya's submission and take the same approach as in Koimo and Koim. The plaintiff will obtain an award for general damages for the pain and suffering he endured as a result of the unlawful assault. He does not receive more damages by proving that he has more than one cause of action.

90. As for exemplary damages, the courts have since the Supreme Court's decision in Abel Tomba v The State (1997) SC518, Amet CJ, Los J, Salika J, been reluctant to award exemplary damages against the State for this sort of abuse of power by the officers of the disciplined forces. The question to ask is whether the breach of the law by the officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of official police powers. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases – as the present case does – exemplary damages are not payable by the State. The plaintiff is expected to seek such redress from the individual officers who breached the law. I can see that there is an argument to make an award of exemplary damages against the three soldiers comprising the first defendant. However, they were not represented at the trial and I do not think Mr Manase articulated this part of the claim sufficiently.

Assessment

91. I will therefore award nothing for breach of constitutional rights or exemplary damages.

CATEGORY NO 9: DAMAGES FOR DISTRESS AND MENTAL SUFFERING AND FRUSTRATION

Plaintiff's submission

92. Mr Manase submitted that the assault put the plaintiff in fear of losing his life. He has suffered distress, mental anguish and depression, for which he should be compensated.

Defendant's submission

93. Mr Poya conceded that this head of damage is pleaded in the amended statement of claim but submitted that there was no evidence to support it. Besides that, he argued, compensation for pain and suffering is included in the award of general damages.

Consideration

94. I partly agree with Mr Poya. There is no independent evidence of the plaintiff's psychological condition, whether immediately after the incident or at the time of the trial. However, the plaintiff stated that he was depressed. He is not as confident in his public speaking as he was before he was assaulted. He now has only one eye. People know that so in some way his standing in the community is diminished. I am prepared to accept the plaintiff's evidence at face value. This clearly was a terrible and traumatic incident. The plaintiff has been through a lot. His life has suffered.

95. The question of law to be resolved is the second point made by Mr Poya: does the award of general damages cover the sort of anguish that Mr Manase seeks to bring under this head of damage? I do not think so. General damages for loss of sight in one eye is compensation for the loss of sight and the pain and suffering directly associated with that. What is claimed under category No 9 is the anguish and suffering associated with the actual incident. The plaintiff was an innocent victim of a brutal criminal act perpetrated by a mob of drunken soldiers. He was almost shot dead. He had to be evacuated to Australia for urgent surgery. He is in a different position to someone who has lost his or her eye through a genuine accident, involving no malice on the part of the person responsible.

96. It is a difficult thing to assess. I will fix on the figure that is 50% of the award of general damages.

Assessment

97. I will therefore award K30,000.00 for damages for mental distress and suffering.

CATEGORY NO 10: BREACH OF CONSTITUTIONAL RIGHTS, INCLUDING EXEMPLARY DAMAGES

Plaintiff's submission

98. Mr Manase asked the court to make a separate assessment of K10,000.00 for trespass to the person.

Defendant's submission

99. Mr Poya made a similar point here to what he submitted in relation to breach of constitutional rights: the plaintiff is already being awarded damages for assault, so he should get nothing more for trespass.

Consideration

100. I uphold Mr Poya's submission. The plaintiff does not receive more damages by proving that he has more than one cause of action.

Assessment

101. I award nothing for trespass.

TOTAL ASSESSMENT

102. To sum up I will award damages as shown in table 4.

TABLE 4: AWARD OF DAMAGES

INTEREST

Discretion

103. It is normal practice in a case in which damages are awarded to also award interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1(1) is the relevant provision. It states:

... in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, 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.

104. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

Exercise of discretion

105. I exercise that discretion in the following way:

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given.

2 The standard rate of interest being used these days by the courts is 8%. In view of prevailing interest rates in the country 8% could be considered generous. However the defendant concedes that 8% is appropriate so it is, I think, the proper rate of interest. It has been decided in some cases that awards of special damages should attract interest at only half of the proper rate (eg Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach.

3 Interest should be payable on the total of the pre-judgment components of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid to him. In Pinzger the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses, eg damages for loss of future earnings, it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following table.

TABLE 5: PRE-JUDGMENT AND POST-JUDGMENT COMPONENTS OF CATEGORIES OF DAMAGES

Thus four categories of damages will attract interest: general damages (K24,000.00), special damages (K45,000.00), past economic loss (K67,548.00) and distress and frustration (K12,000.00).

4 The appropriate period for which interest is to run is also the subject of Supreme Court guidelines in Pinzger. It varies according to the category of damages. For general damages it is from the date of service of the writ to the date of trial. For special damages it is from the date of the injury to the date of trial. In other cases the date of judgment has been substituted for the date of trial (eg Reading v MVIT [1988] PNGLR 266, National Court, Woods J; affirmed on appeal in MVIT v Reading [1988] PNGLR 236, Supreme Court, Kidu CJ, Amet J, Cory J). I consider that the date of judgment is a fairer end-mark for the period. As that lies within the boundaries of my discretion, I set it at that. In the present case the date of the injury is July 1997. The date of service of the writ is February 1998. The date of this judgment is February 2006. Interest will run on general damages, past economic loss and distress and frustration (at 8%) from February 1998 to February 2006, a period of 8 years. Interest will run on special damages (at 4%) from July 1997 to February 2006, a period of 8.6 years.

Calculation

106. I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
  
• I is the rate of interest per annum;
  
• N is the appropriate period in numbers of years;
  
• A is the amount of interest.
  

107. Therefore:

• interest on general damages = K60,000.00 x 0.08 x 8 = K38,400.00;
  
• interest on special damages = K45,000.00 x 0.04 x 8.6 = K15,480.00;
  
• interest on past economic loss = K67,548.00 x 0.08 x 8 = K43,230.72;
  
• interest on distress and frustration = K30,000.00 x 0.08 x 8 = K19,200.00.
  

108. I will order that there be included in the sum for which judgment is given, interest of K116,310.72.

COSTS

109. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. I allowed the statement of claim to be amended during the trial, on condition that the plaintiff pay all the defendant's costs of the trial. I confirm that order.

SUBJECT OF ORDER

110. There is one matter not extensively addressed at the trial that is relevant to the terms of the order. Who should be ordered to pay the damages? In the course of this judgment I have excluded the second defendant, the then Commander of the Defence Force, Leo Nuia, from liability. What about the three soldiers who comprise the first defendant? They were not represented and I am not satisfied they were given notice of the trial. In any event, an award of damages against them may prove academic in view of the amount involved. I think it is beneficial to all parties and in the interests of justice that the order be expressed to apply only to the third defendant, the State.

JUDGMENT

111. The Court directs entry of judgment in the following terms:

1. damages, payable by the third defendant, the Independent State of Papua New Guinea, to the plaintiff, John Pias, in a lump sum of K202,548.00;
   
2. interest payable by the third defendant, the Independent State of Papua New Guinea, to the plaintiff, John Pias, in a lump sum of K116,310.72;
   
3. being a total judgment lump sum of K318,858.72;
   
4. in the event that that total judgment lump sum is not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8% yearly from the date of entry of the judgment on so much of that total judgment lump sum as is from time to time unpaid;
   
5. costs of the proceedings shall be paid by the plaintiff to the third defendant on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.
_____________________________

Pato lawyers: Lawyers for the Plaintiff
Lawyers for the First Defendant: None
Paul Paraka Lawyers: Lawyers for the Second and Third Defendants