N3784

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 830 OF 1999

BETWEEN

NELSON PAWA
Plaintiff

AND

LINUS YUMBUN, OFFICER IN CHARGE, PORGERA POLICE STATION
First Defendant

AND

JOHN WAKON, COMMISSIONER OF POLICE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Makail J,
2009: 24th September & 6th November

DAMAGES - Assessment of damages - Negligence actions by members of police force - Damage to PMV bus - Cost of repairs - Loss of profit - Damages for breaches of constitutional rights - Exemplary damages - Special damages - Whether damages established on balance of probabilities - Various awards made.

Cases cited:

James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486 
William Patitts -v- The State (2006) N3088
Abel Tomba -v- The State (1997) SC518
Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214 
Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247

Counsel:

Mr D Gonol, for Plaintiff
Ms J Y Doa, for Defendants

JUDGMENT

06th November, 2009

1. MAKAIL J: The plaintiff sues the defendants for damages suffered from damage done to his PMV bus, a Mini bus bearing registration no P-5854 ("PMV bus") by a group of unidentified policemen under the command and control of the first defendant when they entered his premises located at Porgera town and without good reason willfully damaged the PMV bus and removed cash of K300.00 on 23rd October 1998. 

2. Default judgment was entered against the defendants on 18th October 2000, hence liability is no longer in issue and the matter comes before me for assessment of damages based on the negligent actions of the members of the police force under the command and control of the first defendant. The plaintiff claims that he spent K7,473.40 for cost of repairs and had lost profit at an average of K180.00 per day or K2,160.00 for 12 days as a result of the damage done to his PMV bus. In seeking to establish his damages, he relies on the following affidavits and documentary evidence:

1. His affidavit sworn on 10th April 2001 and filed on 8th May 2001 (Exhibit "P1");

2. His supplementary affidavit sworn on 25th September 2006 and filed on 025th September 2006 (Exhibit "P2");

3. Registration Certificate of PMV bus issued in 9th May 1998 (Exhibit "P3");

4. Certificate of Insurance for period 9th May 1998 to 9th May 1999 (Exhibit "P4");

5. PMV licence no 59886 dated 11th May 1998 (Exhibit "P5");

6. Certificate of Roadworthiness and Receipts of payments from Western Highlands Provincial Government (Exhibit "P6");

7. Court Order of Wabag District Court of 23rd June 1999 (Exhibit "P7");

8. Receipt of payment of K5,000.00 from Jay Tee Motors Limited dated 24th January 1999 (Exhibit "P8"); and

9. Receipt of payment of K500.00 (Exhibit "P9").

3. The plaintiff also gave oral evidence in respect to his claim for special damages and was cross examined by defence counsel. The defendants on the other hand offered no evidence to refute the evidence of the plaintiff. 

4. From the undisputed evidence of the plaintiff, I find that on 23rd October 1998, a group of unidentified policemen led by the first defendant entered the plaintiffs premises located at Porgera town and willfully damaged his PMV bus and removed cash of K300.00. I make these findings of fact notwithstanding the defence counsel’s submissions that there is no evidence directly connecting the policemen to the missing or stolen cash of K300.00 from the glove box of the plaintiffs PMV bus. This is because, there is no evidence from the defendants either denying or refuting the plaintiffs evidence that the members of the police force stole the K300.00 in the course of damaging his PMV bus. I will return to discuss this aspect of the claim later on but for now, the primary issue therefore is, has the plaintiff established his damages on the balance of probabilities? 

5. Although defence counsel attempted to draw the Court’s attention during cross examination of the plaintiff to the fact that the same complaint against the defendants was brought before the Wabag District Court and struck out, counsel did not address that aspect in her final submissions to the Court. Nonetheless, it is pretty obvious that it was a waste of time for defence counsel to dwell on this issue that is obviously a question of law, rather than of fact to defend the negligent actions of the defendants. For it is not denied by the plaintiff that the Wabag District Court had struck out the plaintiffs complaint in respect of the same claim for the damage to his PMV bus on 28th June 1999. 

6. At law, the fact that the complaint was struck out did not bar the plaintiff from commencing proceeding for the same cause of action so long as he is still within the 6 years time limitation under the Frauds and Limitation Act, 1988. For this reason, I find that the plaintiff is entitled to commence the same action against the defendants, hence the action is not res judicata. It is properly before the Court and the Court is entitled to determine it.

7. I now turn first to the claim for cost of repairs. For this claim, I am satisfied that there is overwhelming evidence in the Registration Certificate of PMV bus (Exhibit "P3"), Certificate of Insurance (Exhibit "P4"), PMV licence no 59886 (Exhibit "P5"), Certificate of Roadworthiness and Receipts of payments from Western Highlands Provincial Government (Exhibit "P6") that the plaintiff is the registered owner of the PMV bus. Thus, he is entitled to claim cost of repairs arising from the damage done to the PMV bus.

8. I am also satisfied that the plaintiff has spent money to have the PMV bus repaired in order to have it back on the road. He has incurred some costs but the question is; how much is the cost of repairs? As noted above, he claims K7,473.40 under this head of damages. In his evidence, he relies on the quotation provided by Jay Tee Motors Limited dated 05th December 1998 marked as annexure "A" to his affidavit (Exhibit "P1") to claim K7,028.13. But I am not satisfied that he has incurred either K7,473.40 or K7,028.13. There is no evidence in the form of a receipt of payment for either sum of money. On the other hand, I am satisfied that he has incurred cost of K5,000.00. This is because there is evidence of a receipt of payment of K5,000.00 from Jay Tee Motors Limited dated 24th January 1999 (Exhibit "P8").

9. I am prepared to award this amount to the plaintiff as cost of repairs and not K7,473.40 or K7,028.13 because I do not accept his oral evidence that he was not given receipts of payments by the workshop for the balance of either K2,473.40 or K2,028.13. If he was not given receipts of all the part payments as cost of repairs at the time of payment, he should have either requested for copies of the originals from the a staff of the workshop or called the staff to give evidence to support his claim of K7,473.40 or K7,028.13.

10. For these reasons, I will award K5,000.00 as cost of repairs.

11. Turning to his claim for loss of profit, as noted above, he claims K2,160.00 for 12 days at K180.00 per day. The difficulty I have with this claim is that whilst the plaintiff says in his affidavit (Exhibit "P1") that he lost this amount when the PMV bus was in the workshop for repairs for 2 weeks, there is no independent evidence to corroborate his claim that he earned K2,160.00 for 12 days. I would have expected the plaintiff to produce copies of his bank statement and, or statement of profit and loss or better still, copies of the receipts of payments of expenses incurred and income made for the PMV operation to enable the Court to determine whether or not he made any profit prior to the damage of the PMV bus. 

12. I expressed reservation over claims for loss of profit arising from PMV operations in James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486 where I said:

"33. First, the cases of Graham Mappa (supra), Kerekal Farming & Trading Pty Ltd (supra), Paulus Kei (supra) and Tony Kulam Kapil (supra) show that it is not sufficient to rely on Affidavit or oral evidence of Plaintiffs to prove claims for loss of profit. There must be some independent evidence like financial statement(s) from an accountant to support the claim for loss of profit. If the accountant’s evidence and financial statement(s) are to be relied upon, then they must be based on primary documents like, bank statements, receipts and invoices, contracts and other documents which would show assets acquired, income due and liabilities incurred by the business.

34. The other school of thought is where, if there is no evidence to the contrary or evidence disproving or contradicting the evidence in support of the claim for loss of profit, the Court merely relies on the Affidavit or oral evidence of Plaintiffs to assess an appropriate amount for loss of profit. This means that, whatever amount the Plaintiffs state in their Affidavits or oral evidence unless disproved or contradicted by other evidence may be accepted and relied upon by the Court to calculate the amount of damages. The case Andrew Kewa (supra) followed this line of thinking.

35. Thus, the question is, which school of thought should I follow in the present case? In the present case, I will follow the first school of thought and so that means that I am not satisfied that the Plaintiffs have proven their losses on the balance of probabilities. 

36. I say this because first, I am not swayed by the Plaintiffs’ submission that this Court should deviate or depart from its past decisions and give concession to small business operators like the Plaintiffs in the present case by not requiring them to produce evidence of bank statements, invoices and receipts of payments and so forth to prove their claim for loss of profit. I find the Plaintiffs’ contention that they are ordinary villagers and small business operators, hence unable to produce these evidences not only a bad business practice but also a lame excuse in an attempt to avoid their duty to prove their losses."

13. I went on to find that the plaintiffs did not produce bank statements and records of daily takings to enable the Court to work out the loss of profit. There, I said:

"43. In the present case, there is no evidence of the Plaintiffs bank statements and record of daily takings unlike in the Paulus Kei’s case (supra), where the Plaintiff produced his bank statement and his record of daily takings. And so, at least the Court had the benefit of some evidence corroborating the Plaintiffs evidence that this was how much money the Plaintiff made from the PMV operation business prior to the accident. Here, there is no such evidence being put before me.

44. It is my view that the Plaintiff in the present case must produce sufficient evidence to prove his loss. The evidence should include bank statements or pass book to show how much money is deposited into the account and how much money is withdrawn from the account to pay for the expenses of the PMV operation. Further if they cannot produce Financial Statement from an accountant, then I consider they should provide invoices and receipts of payment of expenses or at least an accounts ledger or book. 

45. In my opinion, these are documents that are within the Plaintiffs’ reach and I expect them to be made available. For example, I am sure that when buying fuel for the bus, one would expect the Plaintiffs to obtain receipts of payments for the fuel from the fuel service station. When the receipts are provided, they will enable the Court to work out the total fuel costs of the bus. I note this was not done here.

46. I also consider that another form of independent evidence would be evidence from another PMV operator(s) to at least draw a comparison on the kind of income of PMV operations or services in Mt Hagen. In my view, these would be a helpful piece of evidence to demonstrate to the Court the income derived from this kind of business. Again, the Plaintiffs have not done this here.

47. To my mind, a mere statement in the Affidavit that this is the income of the PMV operation and these are the expenses of the PMV operation without any invoices, receipts of payments or bank statements is not sufficient to justify an award. For to do so will not be seen as adhering to the warning of Lord Goddard CJ where he said in Bonham Cater’s case (supra) at page 178 that "Plaintiff must understand that if they bring action for damages it is not enough to write down particulars and so to speak, throw them at the hand of court saying - This is what I have lost, I ask you to give me this damages. They have to prove it."

14. In the present case, I see no exceptional reason or convincing argument put forward by the plaintiff to make me depart from my decision in the above case: see William Patitts -v- The State (2006) N3088, a case where Cannings J, awarded a round up sum of K60,000.00 to the plaintiff for loss of business income in light of the Bougainville Crisis where business records where either lost or destroyed and the plaintiff could not produce them to support his claim for damages arising from unlawful confiscation and detention of his motor vehicle by members of the PNG Defence Force. In this case, no such crisis existed and as I said, there is no independent evidence to verify the plaintiffs claim of K2,160.00. Accordingly, I am not satisfied that the plaintiff has proven his claim for loss of profit on the balance of probabilities and I dismiss it.

15. Thirdly, I return to the claim of the stolen or missing cash of K300.00. Although it was suggested by defence counsel in cross examination that the K300.00 in the PMV bus may have been stolen by the driver and crew of the PMV bus and not the policemen, the plaintiff has out rightly denied the suggestion. He maintained that it went missing during the time the police entered his premises and damaged his PMV bus. This puts the defendants to task to call evidence to refute his evidence that the policemen under the command of the first defendant may have stolen it but they did not. In the absence of such evidence, this means that, the plaintiffs evidence remains intact and leads me to conclude that the K300.00 was not stolen by the driver and crew of the PMV bus but by the unidentified policemen under the command and control of the first defendant. 

16. Accordingly, I am satisfied that the plaintiff has established this claim and I award K300.00.

17. Fourthly, the plaintiff claims exemplary damages from the defendants. Exemplary damages are discretionary. They are awarded to punish the wrongdoer for the wrong committed against the victim. The State is protected by section 12 of the Claims By & Against the State Act 1996, from paying exemplary damages unless there has been severe breaches of Constitutional rights. In James Liwa & Peter Kuriti’s case (supra), I followed the decision in the Supreme Court case of Abel Tomba -v- The State (1997) SC 518, where it held that, exemplary damages will not lie against the State if the actions or omissions of the servants and agents of the State, like police personnel is not authorized by the State and that individual servants and agents of the State are not named or are a party to the proceeding. 

18. In the present case, there is no evidence from the plaintiff that the first defendant and his policemen went to his premises to conduct searches and in the course damaged his PMV bus. There is also no evidence from the defendants to show why they entered the premises of the plaintiff. It seems to me that the first defendant and his policemen entered the premises of the plaintiff and damaged his PMV bus without cause or good reason. But in my respectful opinion, why should State be punished by an award of exemplary damages when the first defendant and his policemen were not instructed and directed in the first place to damage the plaintiffs PMV bus? In the exercise of my discretion, I do not consider it appropriate in the circumstances of the case to order the State, namely the third defendant to pay exemplary damages to the plaintiff.

19. On the other hand, since the first defendant has been identified and named in the proceeding, he must bear the consequences of his and his policemen’s actions by paying exemplary damages to the plaintiff. It shall be a lesson to him and his policemen that the Court will punish servant and agents of the State like them if they do not act within the bounds of the law and their duty.

20. I consider the proposal made by the plaintiffs counsel of K3,000.00 not unreasonable in the circumstances, especially where the first defendant and his policemen damaged the PMV bus by smashing the front and rear lights and deflating the tyres: see photographs of the damaged PMV bus marked as annexure "B" to the plaintiffs affidavit (Exhibit "P1"). I order that the first defendant shall personally pay K3,000.00 to the plaintiff as exemplary damages.

21. The fifth claim the plaintiff makes against the defendants is damages for breaches of his constitutional rights under the Constitution, namely, right to privacy and dignity and inhuman treatment under sections 40 and 36 respectively. His counsel submits that K5,000.00 would be fair and reasonable amount to award in the circumstances of the case, especially where the first defendant and his policemen entered the plaintiffs premises without notice and damaged the PMV bus. 

22. The defendants through their counsel did not address this aspect of damages in their submissions but even if they did, I would still award damages under this head because I quite agree with the plaintiffs counsel’s submission that the first defendant and his policemen have breached the plaintiffs constitutional right of privacy and right of freedom from inhuman treatment. They had no right to simply walk into the plaintiffs premises and did what they did unless of course if the plaintiff is suspected of committing a crime which I find is not the case here. They also have no right to damage the PMV bus. Their actions are not only negligent but also unconstitutional and unjustified.

23. The case calls for an award of damages for breaches of these constitutional rights of the plaintiff and so I endorse the amount of K5,000.00 put forward by the plaintiffs counsel as a fair and reasonable award in the circumstances of the case. I award K5,000.00.

24. Finally, the plaintiff claims special damages. He says that he spent money to pursue this claim against the defendants. In his oral evidence, he says that he spent money on the following:

1. Transportation   - K 3,000.00
2. Accommodation & food - K 3,000.00
3. Legal costs   - K 500.00 

25. He only produced a receipt of payment of K500.00 (Exhibit "P9") for the legal cost. I refuse any award for special damages to cover transportation, accommodation, food and legal costs because the plaintiff has not pleaded them in the statement of claim endorsed to the writ. This is because it is now settled law in our jurisdiction that a party or parties are not at liberty to lead evidence and claim damages where they have not pleaded in the statement of claim the basis of the claim or claims and vise versa in the case of a defence for a defendant(s). See Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214 and Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247.

26. For this reason, whilst the plaintiff has gone to great lengths in giving evidence of special damages, it is regrettable that he is precluded from claiming it. I make no award under this head of claim.

27. In any case, in so far as his claim for legal costs is concerned, I consider that he does not loose out because he will eventually be reimbursed his legal costs when he submits his bill of costs through his lawyers for taxation and certification prior to payment by the defendants. This is if the Court orders the defendants to pay his legal costs of this proceeding. Thus, I make no award for legal costs of K500.00.

28. To summarize, I award:

1. Cost of repairs	- K 5,000.00	
2. Missing or stolen cash	- K 300.00	
3. Damages for breaches of constitutional rights	- K 5,000.00	
	K10,300.00	

29. I calculate 08% interest from the date of issue of writ of 10th August 1999 to the date of judgment of 06th November 2009 pursuant to section 1(1)&(2) of the Judicial Proceedings (Interest on Debts and Damages) Act as follows:

1. From 10th August 1999 to 06th November 2009 is a total of 3,731 days.

2. 08% of the total judgment debt of K10,300.00 is K824.00.

3. K824.00 divided by 365 days in one year is K 2.25 per day rate.

4. K2.25 per day rate multiplied by total number of days of 3,731 gives K8,394.75.

5. Total 08% interest from date of issue of writ to date of judgment is K8,394.75.

30. Adding the total 08% interest of K8,394.75 to the total judgment debt of K10,300.00 gives a total of K18,694.75.

The orders of the Court therefore, are as follows:

1. Judgment is entered against the defendants in the sum of K18,694.75 inclusive of 8% interest which shall run from the date of date of Writ of Summons on 10th August 1999 to date of judgment of instant date.

2. The first defendant shall personally pay K3,000.00 as exemplary damages.

3. The defendants shall pay the cost of the proceeding to be taxed if not agreed.

4. Time for entry of these Orders shall be abridged to the date settlement by the Registrar which shall take place forthwith.

_________________________________________________

Paulus Dowa Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the Defendants