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Tunn v Independent State of Papua New Guinea [2006] PGNC 192; N2973 (21 February 2006)

N2973

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 393 OF 1997

PALME TUNN

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mt Hagen: Cannings J
2004: 13, 20 October
2006: 21 February

JUDGMENT

POLICE – negligence – police raid – representative action – multiple claimants – liability already established by entry of default judgment –conduct of police officers negligent – police officers committed tort of negligence – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – actions of police officers committed within the scope of police functions and responsibilities – no exemplary damages.

DAMAGES – special damages – damage and theft of property – exemplary damages – whether appropriate to award exemplary damages – plaintiff and other claimants awarded various amounts of special damages, plus interest and costs.

A group of 20 to 30 police officers conducted a search of Mamne village in the Minj District of Western Highlands Province. The plaintiff is a resident of that village. He and a number of other villagers claimed that the police unlawfully raided the village and went on a rampage, destroying and stealing property. He commenced proceedings, in a representative action, seeking damages for negligence. Default judgment was entered against the State. 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 police officers committed the tort of negligence and the State is vicariously liable for their tortious actions or omissions committed within the scope of their employment and functions.

(3) The State is liable to pay special damages to each claimant but not exemplary damages as individual police officers were not named as defendants. Abel Tomba v The State (1997) SC518 applied.

(4) Twenty claimants were awarded various amounts of special damages plus interest and costs.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Aimon Aure and Others v Captain Peter Boko and The State [1996] PNGLR 85
Albert Baine v The State (1995) N1335
Andale More and Another v Henry Tokam and The State (1997) N1641
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Desmond Huaimbukie v James Baugen and The State (2004) N2589
Jerry Goria v Sergeant Jeffery Simera and Others (2001) N2066
John Yama v The State (2002) N2198
Jonathan Mangope Paraia v The State (1995) N1343
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Kinsim Business Group v Joseph Hompwafi and Others (1997) N1634
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
MVIT v Pupune [1993] PNGLR 370
MVIT v Tabanto [1995] PNGLR 214
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Palme Tunn v The State, WS No 393 of 1997, 18.12.03, unreported
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Peter Wanis v Fred Sikiot and The State (1995) N1350
Phillip Kunnga v The State (2005) N2864
Steven Kirino v The State [1998] PNGLR 351
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
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
eg – for example
ie – that is
J – Justice
K – kina
N – National Court judgment
OIC – officer-in-charge
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment

Tables

The following tables appear in the judgment:

1 – housing items
2 – household goods items
3 – cooking utensils
4 – men's clothing
5 – women's clothing
6 – bedding
7 – coffee items & tools
8 – food gardens
9 – summary of Palme Tunn's claims
10 – itemisation of value of losses of claimant No 6, Jim Akin
11 – itemisation of value of losses of claimant No 7, Kulam Marakus
12 – assessment of damages for each claimant (in 1996 values)
13 – special damages
14 – interest

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for negligence following the entry of default judgment in favour of the plaintiff.

Counsel

J Nandape for the plaintiff
J Kolkia for the defendant

21 February, 2006

1. CANNINGS J: INTRODUCTION: This is a case about a police operation in a village in Western Highlands Province in 1996. The plaintiff claims that police officers involved in the operation unlawfully destroyed houses, livestock, food gardens and other property belonging to the villagers.

2. The defendant is the State. It has already been found liable for what happened by entry of default judgment against it. The case was therefore set down for trial to determine what amount of damages, if any, should be paid to the villagers.

BACKGROUND

The incident

3. On 12 February 1996 there was a police operation at Mamne village. The plaintiff, Palme Tunn, says that it was an illegal raid involving destruction and theft of property. The plaintiff claims that the police were negligent. Because of that negligence he and other villagers have suffered losses. The defendant, the State, should be held vicariously liable for the negligent conduct of the police officers. The villagers should be awarded damages.

Statement of claim

4. On 29 April 1997 D L O'Connor, Lawyer of Mt Hagen, filed a writ of summons on behalf of the plaintiff and 19 other persons (referred to in this judgment as "claimants"). The State was and is the sole defendant.

5. The statement of claim attached to the writ alleged that police officers employed by the defendant wrongfully and unlawfully destroyed and misappropriated livestock and property belonging to the plaintiff and the others, that the police officers were acting in the course of their employment and that the defendant is vicariously liable for their unlawful actions.

6. The plaintiff himself sought special damages of K3,290.45 (being for goods, trees or crops destroyed or stolen, destruction of his house and its contents) plus exemplary damages. His was the second biggest claim. The 19 others claimed various amounts ranging from K5,756.00 in the case of claimant No 19, Lapun Topo Ondpal, to K735.50 in the case of claimant No 6, Jim Akin.

Events since filing of writ

7. On 22 October 1997 the plaintiff changed lawyers to Tamutai Lawyers. On 13 February 1998 a notice of intention to defend was filed. On 10 May 2002 default judgment was entered against the defendant. On 12 August 2003 a number of affidavits by the claimants were filed. On 14 October 2002 notice to set down for trial was filed. On 11 May 2003 the defendant changed lawyers to Paul Paraka Lawyers.

8. On 5 September 2003 the defendant filed a notice of motion, seeking orders that the proceedings be dismissed for not disclosing and particularising the individual police officers involved in the alleged raid, under Order 8, Rule 29 of the National Court Rules. On 9 December 2003 the defendant filed another notice of motion, seeking an order that the proceedings be dismissed for abuse of process. On 18 December 2003 Davani J dismissed the defendant's motions in their entirety and ordered that the defendant pay the plaintiff's costs before any further steps were taken in the case (Palme Tunn v The State, WS No 393 of 1997, unreported). The case was then set down for trial on assessment of damages.

9. At a pre-trial hearing on 8 October 2004 I ordered that only three of the claimants who had sworn affidavits would be required for cross-examination. That order was made under Section 34 (evidence by affidavit) of the Evidence Act, which allows the court to order that particular facts be proved by affidavit, without the deponent being subject to cross-examination. The State had indicated that it was not proposing to adduce any evidence. Therefore, consistently with the approach taken by Woods J in Aimon Aure and Others v Captain Peter Boko and The State [1996] PNGLR 85, it was not appropriate to allow for speculative cross-examination.

10. On the first day of the trial, 13 October 2004, Mr Kolkia, for the defendant, asked me to set aside the order of 8 October 2004. However, I declined to do so. Mr Kolkia then indicated that he would not require the three deponents, who I had earlier indicated should give oral evidence, for cross-examination. Therefore the trial proceeded on the basis of affidavit evidence alone.

PLAINTIFF'S EVIDENCE

11. Ms Nandape, for the plaintiff, tendered 20 affidavits by consent. They were all sworn on 6 August 2002. All deponents stated that their property was damaged, lost or destroyed on 12 February 1996 and explained how they discovered what had happened. Each affidavit had annexed to it a list of items and their value. For example, Palme Tunn testified that on the day of the incident he had gone to his sister's place at Kundiawa. He returned in the afternoon and found that the door of his house was smashed. His properties were scattered around the house. Domestic animals were missing. Sugar-cane trees were destroyed. The value of Palme Tunn's claims are itemised in tables 1 to 9.

ITEMISATION OF VALUE OF LOSSES IN AFFIDAVIT
OF CLAIMANT NO 1, THE PLAINTIFF, PALME TUNN

TABLE 1: HOUSING ITEMS

TABLE 2: HOUSEHOLD GOODS ITEMS

TABLE 3: COOKING UTENSILS

TABLE 4: MEN'S CLOTHING

TABLE 5: WOMEN'S CLOTHING

TABLE 6: BEDDING

TABLE 7: COFFEE ITEMS & TOOLS

TABLE 8: FOOD GARDENS

TABLE 9: SUMMARY OF PALME TUNN'S CLAIMS

12. The same degree of itemisation occurs in the annexures to the other 19 affidavits. On the face of it this is an impressive amount of detail. However, there are some evidentiary issues arising from these affidavits and their relationship to the statement of claim that must be addressed.

13. First, the categorisation of items (housing items, household goods items etc) in the affidavits does not match the categorisation in the statement of claim (which categorises losses as trade store, cash, tree crops, house, livestock, household contents).

14. Secondly, in many cases, where the categories are the same or roughly similar, the amounts are different. For example, in the case of Palme Tunn, the statement of claim pleads losses of K2,583.25 for 'household items'. But in his affidavit the various things that can, on the face of it, be regarded as household items add up to only K964.65 (housing items, K104.20; household and goods, K409.35; cooking utensils, K132.90; men's clothing, K133.40; women's clothing, K80.00 and beddings, K104.80).

15. Thirdly, for each of the 20 claimants, the total value of the losses appearing in the statement of claim is different to what is in the annexure to that claimant's affidavit. For example, Palme Tunn's total in the statement of claim is K3,290.45. In the affidavit it is K3,224.65.

16. Ms Nandape acknowledged these issues in her submission and I will address their significance later. It suffices to say, for now, that the discrepancies have made the court's task of assessing damages cumbersome and time-consuming.

DEFENDANT'S EVIDENCE

17. The defendant offered no evidence.

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

18. 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.
  

19. 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

20. This is a common law action for negligence, brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). The common law of negligence 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.

21. 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 negligence. That is:

• first that the police officers who conducted the operation at Mamne village owed a duty of care to the plaintiff and the other claimants;
  
• secondly that the police officers breached that duty, ie their conduct was negligent;
  
• thirdly that their negligent conduct caused injury to the claimants;
  
• fourthly that the claimants' injuries were not too remotely connected to the police officers' conduct; and
  
• fifthly that the claimants did not contribute to their own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.
  

22. Thus the plaintiff established a cause of action in negligence. (See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)

23. I am satisfied that the defendant, the State, is vicariously liable for the negligence of various police officers that caused the plaintiff's losses.

ASSESSMENT OF SPECIAL DAMAGES

24. As I indicated earlier there were many discrepancies between the statement of claim and the affidavit evidence relating to each claimant. Mr Kolkia, for the defendant, rightly seized on these discrepancies to argue that the court should deal with the case with considerable circumspection. He presented a written submission that analysed in intricate detail each category of damage contained in each claimant's affidavit. He highlighted numerous instances where the affidavit evidence was not supported by the statement of claim or the statement of claim referred to an item of loss that was not backed up with any affidavit evidence.

25. For example, for Palme Tunn, Mr Kolkia pointed out that the statement of claim pleads that he lost trees and crops worth K561.00, his house worth K146.20 was destroyed and 246 household items worth K2,583.25 were destroyed, making a total claim of K3,290.45 special damages. However, in his affidavit a different picture emerged. He gave evidence of his losses as follows: housing items (K104.20), cooking utensils (K132.90), men's clothing (K133.40), women's clothing (K80.00), bedding (K104.80), coffee items and tools (K2,150.00), food gardens (K110.00); making a total claim of K2,815.30. (The total arrived at by Mr Kolkia is K2,711.10 which is not the sum of the figures listed. I have inserted the correct total of K2,815.30.) Mr Kolkia, however, did not mention a claim for household and good items (K409.35) that Palme Tunn sets out clearly in his affidavit. This would bring the total claim as per the affidavit to K3,224.65.) Mr Kolkia submitted that Palme Tunn should be awarded nothing for the loss of his house, as it was pleaded but there was no evidence of the loss in his affidavit. As for household items, he pleaded K2,583.25 but his affidavit gave evidence of only K451.10. As for trees and crops, he claimed K561.00 in the statement of claim but his affidavit gave evidence of only K110.00. As for the K2,150.00 in the affidavit for coffee items and tools, nothing was pleaded so nothing can be awarded. Mr Kolkia concluded that Palme Tunn should be awarded only K561.10.

26. Ms Nandape's written submission was also detailed. She acknowledged the difficulties arising from the inconsistencies between the statement of claim and the affidavits. She submitted that those inconsistencies could be properly dealt with by treating the claims for special damages as falling within the six categories outlined in the statement of claim:

(a) trade store;
(b) cash;
(c) tree and food crops;
(d) house/door;
(e) livestock/domestic animals;
(f) contents of house.

27. Ms Nandape then pigeonholed each of the categories in the annexures to the affidavits into those six categories. She conceded that each claimant should be awarded the lesser of the amounts for each category: for each claimant the total amount of special damages should be the total of the lesser of the two amounts for each category of damage. This approach is well illustrated by claimant No 6, Jim Akin. The details of his claim are shown in table 10.

TABLE 10: ITEMISATION OF VALUE OF LOSSES
OF CLAIMANT NO 6, JIM AKIN

28. Ms Nandape submitted that this claimant should receive nothing for category (d) (house/door) as, even though the affidavit has evidence of a K45.00 loss, there was nothing in the statement of claim to support it. As to category (f) (contents of house) K711.49 should be allowed as, though the statement of claim pleaded a loss of K735.50, there was only evidence of K711.49. Accordingly her submission was that claimant No 6 should be awarded special damages of K711.49 (being 0 + 711.49 = 711.49).

29. Another good example of this approach is provided by claimant No 7, Kulam Marakus. The details of his claim are shown in table 11.

TABLE 11: ITEMISATION OF VALUE OF LOSSES
OF CLAIMANT NO 7, KULAM MARAKUS

30. Ms Nandape submitted that this claimant should receive nothing for category (c) (tree and food crops) as, even though the statement of claim pleaded a K361.50 loss, there was no evidence of it. As to category (d) (house/door) there was evidence in the affidavit of a K93.00 loss, but only K80.60 was pleaded in the statement of claim. As to category (f) (contents of house) K927.06 should be allowed as, though the statement of claim pleaded a loss of K1,695.86, there was only evidence of K927.06. Accordingly her submission was that claimant No 7 should be awarded special damages of K1,007.66 (being 0 + K80.60 + 927.06 = K1,007.66).

31. I found Ms Nandape's submission to be reasonable, logical and consistent with accepted principles for assessment of damages. Her submission was similar to that of Mr Kolkia, though they differed in the conclusions that they asked the court to draw in relation to each claimant. I have closely considered each submission and come to my own assessment of special damages for each claimant. The results are summarised in table 12.

32. Column 1 of the table gives the number of the claimant. Column 2 names the claimant. Column 3 indicates the total amount of special damages pleaded in the statement of claim. Column 4 gives the total amount of special damages itemised in the affidavit. Column 5 gives the plaintiff's submission. Column 6 gives the defendant's submission. Column 7 gives the court's assessment of special damages.

TABLE 12: ASSESSMENT OF DAMAGES FOR EACH CLAIMANT
(IN 1996 VALUES)

33. I have accepted Ms Nandape's submission with the exception of claimant No 9, Alkan Goi. In his case, the defendant's submission is greater than the plaintiff's.

34. I have taken into account that formal valuations have not been provided and receipts and invoices are not available. However, the property that is being dealt with here – small household belongings, house fittings, livestock and crops – is not of the sort that village people would reasonably be expected to keep receipts or invoices for. In light of the nature of the events that took place the claims do not seem unreasonable, unrealistic or exaggerated.

35. I am satisfied that the plaintiff has proven on the balance of probabilities that property of the claimants of the value shown in column 7 of table 12 was stolen, damaged or destroyed as a result of the police raid.

36. The next thing to do is to take into account that the assessment of damages so far arrived at represents the value of the items at the time of the incident, in 1996. That was ten years ago. Ms Nandape asked me to take the time lag and the effect of inflation into account. I agree that that should be done. As in Phillip Kunnga v The State (2004) N2864, I consider that doubling each amount will lead to a just outcome. Therefore I will award special damages as shown in table 13. Column 1 is the number of the claimant, column 2 the name, column 3 the 1996 value and column 4 the amount of special damages awarded.

TABLE 13: SPECIAL DAMAGES

EXEMPLARY DAMAGES

37. Since the Supreme Court's decision in Abel Tomba v The State (1997) SC518, Amet CJ, Los J, Salika J, the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. 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, exemplary damages are not payable by the State. A plaintiff is expected to seek such redress from the individual police officers who breached the law.

38. Ms Nandape asked me not to follow Tomba and suggested that it was decided per incuriam (ie wrongly decided, without regard to all the relevant law). She sought K800.00 exemplary damages for each claimant. However, Tomba has been consistently followed by the National Court: Kinsim Business Group v Joseph Hompwafi and Others (1997) N1634, Bidar AJ; Andale More and Another v Henry Tokam and The State (1997) N1641, Injia J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, Injia J; Steven Kirino v The State [1998] PNGLR 351, Sawong J; Jerry Goria v Sergeant Jeffery Simera and Others (2001) N2066, Sheehan J; John Yama v The State (2002) N2198, Kapi DCJ; Desmond Huaimbukie v James Baugen and The State (2004) N2589, Kandakasi J; Phillip Kunnga v The State (2005) N2864, Cannings J. I am not inclined to depart from Tomba.

39. I consider that the facts of the present case fit into the second category outlined above. Exemplary damages are not appropriate in this case and I do not award them.

TOTAL AMOUNT OF DAMAGES FOR EACH CLAIMANT

40. Each claimant will receive a total award of damages equal to the amount of special damages awarded and nothing more, except interest.

41. Interest is not part of an award of damages and is assessed separately.

INTEREST

Relevant law

42. In the statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

(1) Subject to Section 2, 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.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

Discretion

43. 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

44. 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. The Court will order that interest be included in the sum for which judgment is given.

2 As this is a claim against the State, the maximum rate that can be awarded is, by virtue of Section 1(2), 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.

3 Interest should be payable on the whole of the sum of damages for which judgment is given.

4 The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day of the incident, 12 February 1996. The date of judgment is in February 2006. The appropriate period, for the sake of mathematical convenience, is ten years.

Calculation

45. I calculate the amount of interest by applying 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.
  

For example, for Palme Tunn, interest is calculated as follows:

• K5,575.30 x 0.08 x 10 = K4,460.24
  

46. I will order that there be included in the sum for which judgment is given, interest of the amounts shown in table 14 in respect of each claimant.

TABLE 14: INTEREST

COSTS

47. 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. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

48. The court directs entry of judgment in the following terms:

1. damages payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Palme Tunn, and to each of the other claimants in the following lump sums as itemised in column 3 of the table below;
   
2. interest payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Palme Tunn, and to each of the other claimants in the following lump sums as itemised in column 4 of the table below;
   
3. being total judgement lump sums payable to the plaintiff, Palme Tunn and to each of the other claimants as itemised in column 5 of the table below;
   

4. in the event that the total judgment lump sums for the plaintiff, Palme Tunn, or the other claimants are 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 the relevant total judgment lump sum as is from time to time unpaid;
   
5. costs to be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.
____________________________
Tamutai Lawyers: Lawyers for the Plaintiff
Paul Paraka Lawyers: Lawyers for the Defendant