N3087

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 615 OF 1994

LUKE DEUKARI
Plaintiff

V

DANNY KUGLAM
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Buka: Cannings J
2006: 18 August, 29 September

JUDGMENT

DISCIPLINED Forces – Defence Force – trespass to property – burning down of houses in security operation – Bougainville Crisis – liability already established by entry of default judgment – conduct of Defence Force soldiers – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – whether actions of soldiers committed within the scope of Defence Force functions and responsibilities – whether exemplary damages payable.

DAMAGES – damage to property – general damages – special damages – exemplary damages – whether appropriate to award exemplary damages – plaintiff awarded damages, plus interest and costs.

A Defence Force detachment was engaged in a security operation in the Bougainville Crisis. There was a shootout between the detachment and members of the BRA. Shortly afterwards members of the Defence Force detachment blew up two of the plaintiff’s houses, destroying them. The plaintiff sued the head of the Defence Force detachment and the State for unlawful destruction of property. Liability was established by entry of default judgment and 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 members of the Defence Force committed the tort of trespass to property and the State is vicariously liable for their tortious acts or omissions committed within the scope of their employment and functions.

(3)	The State is liable to pay special damages of K97,131.80, general damages of K50,000.00 but not exemplary damages; being a total of K147,131.80. 

(4)	The plaintiff was awarded interest of K158,902.34, being a total judgment sum of K306,034.14; plus costs.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
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
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
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
MVIT v Pupune [1993] PNGLR 370
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
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

ASSESSMENT OF DAMAGES

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

Counsel

T R Tamusio, for the plaintiff
T P Potoura, for the defendants

INTRODUCTION

1. CANNINGS J: This is a case about a Defence Force operation during the Bougainville Crisis that resulted in two of the plaintiff’s houses being blown up. 

2. The first defendant, Danny Kuglam, was the troop commander of the Defence Force detachment, holding the rank of Corporal. The second defendant is the State. Both defendants have already been found liable for what happened by entry of default judgment against them. The case was therefore set down for trial to determine what amount of damages, if any, should be paid to the plaintiff.

BACKGROUND

The incident

3. On 19 March 1993, there was a Defence Force operation near Inong village in the Siwai District, South Bougainville. This was during the Bougainville Crisis. There was a shootout between the detachment and members of the BRA. The plaintiff, Luke Deukari, says that two of his houses were blown up, without lawful excuse, by the detachment, whose commander was the first defendant, Danny Kuglam. He says the Defence Force blew up his houses as they thought he was a BRA sympathiser. The second defendant, the State, should be held vicariously liable for the intentional conduct of the Defence Force detachment. He should be awarded damages.

Statement of claim

4. On 12 August 1994 a writ of summons was filed on behalf of the plaintiff. Then, on 22 November 1994, an amended writ of summons was filed.

The plaintiff seeks the following remedies:

·	special damages of K97,131.80;
·	general damages;
·	exemplary damages;
·	interest.

5. On 23 September 2005, Lenalia J ordered default judgment against the defendants.

PLAINTIFF’S EVIDENCE

6. Mr Tamusio, for the plaintiff, tendered four affidavits by consent. 

The affidavits

7. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS 
TENDERED BY PLAINTIFF

Exhibit	Description	Content 	
A	Luke Deukari, villager, 
08.09.94	Gives an account of the incident and itemises his losses. 	
B	Effie Deukari,
plaintiff’s daughter,
08.09.04	Gives an account of the incident and provides a list of items lost in the fire.	
C	Nick Peniai,
villager, 
16.10.03	Supports the plaintiff’s affidavit and says what the plaintiff is saying is true.	
D	Luke Deukari,
villager, 
27.10.05	Annexes photos of the plaintiff’s houses destroyed by the PNGDF soldiers.

DEFENDANT’S EVIDENCE

8. Mr Potoura, for the defendants, tendered one affidavit by consent, as shown in table 2.

TABLE 2: SUMMARY OF AFFIDAVITS 
TENDERED BY DEFENDANTS

Exhibit	Description	Content 	
D1	Danny Kuglam,
first defendant, 
14.11.94	Denies burning down the plaintiff’s houses – when he went there the houses were already burning. It must have been the BRA or the Resistance.	

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

9. 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.

10. 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

11. The statement of claim does not expressly state the cause of action. However, given that it is a claim for damages for unlawful destruction of property, the cause of action is reasonably to be regarded as a common law action for trespass to property, brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). (See J G Fleming, The Law of Torts, 9th edition, LBC Information Services, © 1998, chapter 3, Intentional Invasion of Land.) The common law of trespass 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.

12. I have checked the statement of claim and I am satisfied that it adequately pleads the facts to support the elements of the tort relied on. 

13. I am satisfied that the defendant, the State, is vicariously liable for the trespass to the plaintiff’s property, including the houses and chattels on it, committed by members of the Defence Force, and for the resultant losses.

WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED?

14. I will set out in the following table the three categories of damages the plaintiff is claiming, as set out in Mr Tamusio’s submission. The table also summarises the defendant’s response, as per Mr Potoura’s submission.

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

TABLE 3: PLAINTIFF’S CLAIMS AND DEFENDANTS’ RESPONSE

No	Category	Amount claimed	Response	
1	Special damages	K 97,131.80	K 0	
2	General damages 	 7,715.36	0	
3	Exemplary damages	50,000.00	0	
Total	K 154,847.16	K 0	

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

CATEGORY NO 1: SPECIAL DAMAGES

Plaintiff’s submission

17. Mr Tamusio submitted that the court should work on the basis of what has been carefully itemised in exhibits A and B.

Defendants’ submission

18. Mr Potoura submitted that there is no admissible evidence to substantiate this claim. 

Consideration

19. I 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 tortious conduct. 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). 

20. I reject Mr Potoura’s submission that the evidence is inadmissible. The court has sworn evidence before it and the deponents of the two affidavits have not been required for cross-examination. The amounts claimed do not seem outlandish or over the top. 

Assessment 

21. I award K97,131.80 special damages.

CATEGORY NO 2: GENERAL DAMAGES

Plaintiff’s submission

22. Mr Tamusio submitted that the plaintiff’s houses were profit-earning chattels and that the plaintiff should be awarded K7,715.36, the amount pleaded in the statement of claim. 

Defendants’ submission

23. Mr Potoura submitted that the nature of this head of damage had not been particularised in the statement of claim – it was a very vague claim and therefore the plaintiff should be awarded nothing. 

Consideration

24. I agree with Mr Potoura that this is a rather vague claim. I also think that Mr Tamusio’s submission has muddied the waters somewhat. Mr Tamusio has highlighted that the houses were profit-making chattels as part of one of the houses was used as a trade-store. However, if that were to be his submission there should have been a specific head of damage for ‘loss of profits’ or something similar included in the statement of claim. It is ‘damages’, as distinct from the liquidated sum of K97,131.80, that is pleaded in the statement of claim. 

25. I have taken ‘damages’ to mean ‘general damages’, which means that the plaintiff is claiming a global sum to compensate him for the pain and suffering and inconvenience and anguish of having his houses destroyed in the middle of the crisis. This seems a reasonable claim. I am not restricted to what a plaintiff’s lawyer has set out in their submission. I propose to award a higher amount than what has been submitted for, which reflects what I consider would be a modest amount of compensation to someone who has lost two houses due to the unlawful actions of the Defence Force. 

Assessment 

26. I award K50,000.00 general damages.

EXEMPLARY DAMAGES

Plaintiff’s submission

27. Mr Tamusio submitted that the first defendant and the members of the Defence Force under his command were implementing government policy by attacking anybody thought to be assisting the BRA. The policy was unlawful and unconstitutional, and exemplary damages – to penalise the State for its unlawful policy and commands – are warranted.

Defendants’ submission

28. Mr Potoura submitted that exemplary damages are inappropriate as this was not a mere technical breach of the law – the Defence Force detachment was acting outside the scope of its normal, lawful powers and authority.

Consideration

29. 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 powers by members of the disciplined forces. 

30. The question to ask is whether the breach of the law by such members is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of lawful powers eg where a Police Force or Defence Force operation is unauthorised and individual members of the Force are not named as defendants. 

31. If the facts fit into the first category, exemplary damages may be payable by the State. 

32. 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 members who breached the law.

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. 

33. I am not inclined to depart from Tomba.

34. 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.

SUMMARY OF DAMAGES AWARDED

See table 4 below.

TABLE 4: SUMMARY OF DAMAGES AWARDED 

No	Category	Amount awarded	
1	Special damages	K 97,131.80	
2	General damages 	50,000.00	
3	Exemplary damages	0	
Total	K 147,131.80	

INTEREST

Relevant law

35. 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

36. 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

37. 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 percent. In view of current economic conditions in the country I think 8 percent 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, 19 March 1993. The date of judgment is 29 September 2006. The appropriate period, for the sake of mathematical convenience, is 13.5 years.

Calculation

38. 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.

Thus:

·	K 147,131.80 x 0.08 x 13.5 = K158,902.34.

COSTS

39. 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.

SUBJECT OF ORDER

40. 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? I am not satisfied that the first defendant was given notice of the trial. In any event, an award of damages against him 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 second defendant, the State.

JUDGMENT

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

1	damages payable by the second defendant, the Independent State of Papua New Guinea, to the plaintiff, Luke Deukari, in the sum of K147,131.80;

2	interest payable by the second defendant, the Independent State of Papua New Guinea, to the plaintiff, Luke Deukari, of K158,902.34;

3	being a total judgment lump sum payable to the plaintiff, Luke Deukari, of K306,034.14;

4	in the event that the total judgment lump sum for the plaintiff, Luke Deukari, is not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8 percent yearly from the date of entry of the judgment on so much of the total judgment lump sum as is from time to time unpaid;

5	costs to be paid by the second defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
____________________________

TR Tamusio & Associates: Lawyers for the plaintiff
Paul Paraka Lawyers: Lawyers for the defendants