N4138

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 274 OF 2002

BETWEEN:

DOBIAM KOPE
First  Plaintiff

AND:

EVELYN KOPE
Second Plaintiff

AND:

MAURICE DOPE
a child by is next friend DOBIAM DOPE
Third Plaintiff

AND:

TOURISM PNG LTD
First Defendant

AND:

TO''ORO AIHI
Second Defendant

AND:

JOHN R. WILD
Third Defendant

Waigani: Gavara - Nanu
2008:	 23 October
2010: 07 September

DAMAGES - Practice and Procedure – Special damages – Need to strictly prove damages – Exemplary damages - Statutory breach not proved – Claims dismissed - All the plaintiffs claiming damages as employees – A plaintiff who is a child has no standing to claim damages as an employee.

DAMAGES - Practice and Procedure – General damages – Employer owing a common law duty of care to employees to provide safe work place – Employer failing to provide safe work place for the employees.

DAMAGES - Practice and Procedure – Costs – Plaintiffs only partially successful in their claims – Reduced costs awarded to the plaintiffs.

DAMAGES - Practice and Procedure – Interest – Plaintiffs not claiming interest – Court has no power to award interest on damages awarded.

Cases cited:

Papua New Guinea Cases
Andrew Cashwell –v- National Parks Board [1987] PNGLR 458
Banz Kofi Fectori -v- Ramond Apa N2374 
Bepiwan Ambom -v- Motor Vehicles Insurance (PNG) Trusts (MVIT) (1992) N1116
Delphi Corporate Investigations -v- Bevan Kipit N2480 
Demba Kalo –v- Connie Akaya (2007) N3213
Edwards –v- Jordon Lighting [1978] PNGLR 273
Eliekim Laki –v- Maurice Alaluku, Secretary for Department of Lands and Physical Planniong [2000] PNGLR 392
James Robert Colbert –v- Independent State of Papua New Guinea [1988–89] PNGLR 590
Joe Maguwean -v- The State [1992] PNGLR 367
Karawari Lodge Pty Ltd -v- Bernard Luck (1998) SC553
Newsat Ltd –v- Telikom PNG Ltd (2007) N3448
Papua Club Inc. –v- Nusaum Holding Limited & 5 Others N2603
Paul John –v- Gerd Lindhardet and Servicom Pty Ltd (1999) N1983 
Post & Telecommunication -v- MVIT N2479
Roslyne Kusa -v- MVIT N2328 
Wilhelm Lubbering –v- Bougainville Copper Ltd [1977] PNGLR 183

Overseas cases
Stroms Bruks Aktie Bolag -v- John Peter Hutchison [1905] A.C 515 at 525 to 526 
A.C.I Metal -v- Boczulik (1964) 110 C.L.R. 372 
Ashdown -v- Williamson [1957] 1 Q.B. 409 (C.A.)
Uren –v- John Fairfax & Sons Pty Ltd (1966) 117 C.L.R. 118 

Counsel
D. Kombagle, for the plaintiffs
J. Parina, for the defendants 

1.	GAVARA-NANU J:	 The plaintiffs are claiming damages against the defendants for an alleged failure by the defendants to provide safe work place for them and for the defendants'' alleged failure to comply with requirements under the Workers Compensation Act, Chapter 179, to lodge compensation claims for the injuries allegedly suffered by them and the defendants'' alleged failure to take out insurance covers for them. 

2.	The plaintiffs'' claims arise out of a robbery which occurred on 29 May, 1999, at Woitape lodge (""the lodge"") in the Goilala District of the Central Province.

3.	The first plaintiff was the Manager of the lodge and the second plaintiff was the Assistant Manager, the third plaintiff is the son of the first and second plaintiffs who are a husband and wife. The third plaintiff was about five years old when the robbery occurred. 

4.	The lodge was owned by the third defendant, the second defendant was the General Manager of the first defendant and the third defendant was the Chief Executive Officer and proprietor of the first defendant. There is no challenge to these facts by the defendants and I accept them.

5.	The robbery occurred between 11.00pm on 29 May, 1999 and 3.00 or 4.00 am on 30 May, 1999. 

6.	At about 11.00 pm on 29 May, 1999, the plaintiffs were sleeping in their bedroom which was on the top floor of the two storey lodge, the bottom floor of the lodge was where the dinning room, bar and guests'' rooms were located.

7.	The first two plaintiffs told the Court that at about 11.00 pm on 29 May, 1999, a gang of six men armed with guns and bush knives went to the lodge and fired shots before breaking and entering the lodge. The men stole things from the lodge which included liquor from the bar. They asked the plaintiffs for a ""smart white man"", when the first plaintiff told them that the white man was no longer working at the lodge, they demanded money from him and assaulted him with a butt of a gun one of the men was holding. The men then got money from the bar and went upstairs to the plaintiffs'' bedroom. There, they demanded money from the plaintiffs. Sometime later the first plaintiff was separated from the second and third plaintiffs, as the latter two were led into a bedroom. The first plaintiff was ordered to lie down and was told not to move or he would be shot. The second plaintiff told the Court that she was also gun butted and the third plaintiff who was with her at that time fainted during the assault. Sometime later, the gang ordered the first plaintiff to the room where the second and third plaintiffs were on the second floor of the lodge, the gang then told the first plaintiff to take the third plaintiff and go to another room leaving the second plaintiff in one room by herself. According to the first and the second plaintiffs, that was when the second plaintiff was raped by three of the men. 

8.	The plaintiffs were recruited from Mount Hagen towards the end of December, 1998, to manage the lodge. At the time of the robbery, they had been working at the lodge for about five months. Before the first and second plaintiffs took up their jobs at the lodge, the lodge was managed by a Tim Wild. There is evidence from the first plaintiff that when Tim Wild was managing the lodge, he assaulted one of the six men that broke into the lodge on 29 May, 1999, when that man went to the lodge and caused some disturbances.

9.	The defendants called two witnesses; one is To''oro Aihi who is the second defendant and the other is Ivoro Eve, who was employed at the lodge at the time of the robbery. On the night of the robbery, it was a full moon and Ivoro Eve was in his Idiba village, which is not far from the lodge. That night, the people of Idiba were having a dance. Before the criminals broke into the lodge, they fired shots, when the people of Idiba heard the gun shots, they fled from the dance and ran into their houses. According to Ivoro Eve the lodge and its premises were in total darkness at that time because the generator which provided power to the lodge was put off at 10.00 pm which was a standing policy of the lodge. He said he was at the Idiba village dance and when he heard the gun shots he and four other men from the village went and hid near the lodge and they could see the robbery taking place clearly. He said he saw two men holding guns and the others were holding bush knives. He confirmed that there were six men, they went through the main gate of the lodge premises then broke the lodge''s main door and went inside the lodge. He saw a number of them coming out of the lodge sometime later with a stereo they stole from the lodge, the men then started drinking the beer they stole from the lodge, they put the stereo on and were dancing. While Ivoro Eve and his friends were watching, he heard screams coming from the lodge, the screams were from a woman, the woman screamed three times and was saying ""Ayo mama"" 

10.	The next day, when Ivoro Eve went to work at the lodge, he saw broken glasses and noted that all the beer kept at the bar were stolen together with strong drinks. He also noticed that the first plaintiff''s right side of the face was swollen. 

11.	The second plaintiff told the Court that after the robbery, she also complained to the defendants about being raped. She and the third plaintiff left for Port Moresby after the robbery. The first plaintiff reported the robbery and rape to the police, the complaint was made through To''oro Aihi in Port Moresby to report to the police. 

12.	There is conclusive evidence from the affidavits sworn by the first and second plaintiffs that the robbery and rape were reported to the police. The statements they each made to the police are annexed to their respective affidavits. In their statements the first and second plaintiffs also stated that the second plaintiff was raped. 

13.	In their defence to the alleged rape on the second plaintiff, the defendants argued that there is no medical evidence to corroborate and prove that the second plaintiff was raped. Allegation of rape by the second plaintiff is a complaint of a criminal nature, thus there must be substantive and convincing evidence to prove the claim before she can be awarded damages, see; Papua Club Inc. –v- Nusaum Holding Limited & 5 Others N2603 at pages 94 - 105.

14.	From the materials before the Court, I am satisfied that there is substantive and convincing evidence that the second plaintiff was raped, the evidence includes screams of a woman heard by Ivoro Eve coming from the lodge during the robbery. Those screams could only come from the second plaintiff, because she was the only woman that was inside the lodge during the robbery and she was the only female victim of the robbery. She was also gun butted, it is therefore reasonable to say that the screams may have been related to that assault, there is also evidence that she was separated from her husband and son and was led to another room alone. She and the first plaintiff said, that was when she was raped. It may be that her screams related to the gun butting, but her claim of being raped during the robbery is consistent with her statement to the police, which in my view satisfies the requirement for a fresh complaint. In any case, she was not seriously challenged on this point in cross-examination. She should have been closely questioned and probed on the point. This is where the rule in Browne v. Dunn (1893) 6 R 67 HL, in my opinion applies in her favour, thus it would be unfair for the Court to find against the second plaintiff on her claim. The first and second plaintiffs were asked a few questions in cross-examination on this allegation of rape of the second plaintiff, but they were not moved. Furthermore, ordinary rules of commonsense and logic apply in second plaintiff''s favour in that her evidence that she was separated from her husband and son by three of the criminals and was taken into another room on her own, strongly supports her claim that she was raped in that room. That is the only reasonable inference that the Court can draw, after all why would she be separated from her husband and child after she had given all the money and things the men had demanded? It follows that the only inescapable conclusion I can draw is that she was taken into the room to be raped. The circumstantial evidence adduced before the Court in my opinion would satisfy even the criminal standard of proof, i.e. beyond my reasonable doubt. I therefore accept the first and second plaintiffs'' evidence that the second plaintiff was raped. The plaintiffs have proven what they have asserted.

15.	There is evidence that there was no security guard at the lodge at the time of the robbery. The general standard of lighting at the lodge was poor and inadequate because the generator that provided power to the lodge could only operate up to 10.00 pm each night, because by 10.00 pm each night the generator had to be put off. Thus, after 10.00 pm every night the lodge was always without light until the next morning. 

16.	 The fencing around the perimeter of the lodge was made of wood and sticks and was old. According to Ivoro Eve, the fence was shoulder high which had wood and sticks staked along the front and both sides of the lodge, the back of the lodge was fenced with chicken wire. This evidence is not in dispute. The main gate to the lodge was also made of wood and was easy to open. The lodge had a lone unarmed security guard. 

17.	 The main door to the lodge was made of solid wood and had deadlock, the doors to the guests'' rooms and the room to the Manager were made of wood with locks. However, as it can be seen from the evidence, they were easily broken by determined criminals during the robbery.

18.	To the first and second plaintiffs, the security at the lodge was very inadequate. They said there were no spot lights and the generator which provided power to the lodge was also not operating consistently. 

19.	The first plaintiff told the Court that he was concerned about the security at the lodge when he first took up his job, so he asked the defendants to improve the security for the lodge. He also asked for a licensed firearm as a security measure and for police to be stationed at the local Police Station, but those requests were either ignored or simply not attended to by the defendants. There is evidence that the local police station had no policemen.

20.	The second defendant told the Court that at the time of the robbery, he was in his village when the third defendant phoned him and told him to return to Port Moresby to organize a police contingent to travel to Woitape to investigate a reported robbery at the lodge. 

21.	 On 30 May, 1999, the second defendant traveled to Woitape with about eleven policemen, when they arrived at the lodge they confirmed the robbery and made their own inquires. He told the Court that the plaintiffs may have given their statements about the robbery to the police at that time.

22.	The lodge and its contents were not insured, so after the robbery, the defendants tried to insure the lodge and its contents with Marsh Ltd, but the application was refused because of the remote location of the lodge. 

23. 	The first plaintiff told the Court that the perimeter fence around the Lodge was incomplete, he said some parts of the fence were repaired after the robbery. He said spot lights were also installed on both sides of the Lodge after the robbery. 

24.	 The second defendant confirmed that it was a policy of the lodge for the lights to be put off by 10.00 pm every night to conserve power. He conceded that it was easy for criminals to gain access to the lodge under the cover of darkness as there were no lights. He confirmed that he was the General Manager of the first defendant and Advisor to the third defendant. He also confirmed that the plaintiffs had no insurance covers. He told the Court that the owners of the lodge were going to take out insurance covers for the plaintiffs but they did not. He said he left that issue to the owners of the lodge to address because he was told by the owners that they would address it.

25.	There is no doubt that not only was there an employer and employee relationship between the first and second plaintiffs and the defendants, but there was also a master and servant relationship between them. 

26.	 The fact that the third defendant had recalled To''oro Aihi from his village upon receiving the news about the robbery then subsequently flew a contingent of police to Woitape with To''oro Aihi, confirms that the third defendant had control over the lodge and the plaintiffs. 

27.	 Although there is no direct evidence regarding the third defendant''s ownership over the lodge, the fact that Tim Wild who appears to be a relative of the third defendant had once managed the lodge and that the third defendant had sent To''oro Aihi to investigate the robbery also confirms the third defendant''s ownership and control over the lodge. This places a duty on the defendants to ensure that the plaintiffs had a reasonably safe and secure work place. In this regard, I am satisfied that the plaintiffs have sufficiently pleaded the defendants'' common law duty of care to them under paragraph 12 of the Statement of Claim. 

28. 	The defendants have argued that the area surrounding the lodge was quiet and peaceful and there had not been any security issues for many years before the robbery, thus there was no reason for the defendants to improve security for the lodge. I find such argument unconvincing and lacking any appreciation of the prevailing serious law and order problems in the country including Woitape. The lodge was remotely located in the Goilala District of the Central Province which is an area in Papua New Guinea which is notorious for criminal activities. This point is pleaded in paragraph 12 (f) of the Statement of Claim. Thus, it was in my opinion easy for any reasonable person to foresee and appreciate that the lodge was situated in a high risk area and should have given priority to security for the lodge and its employees. This should have been enough reason for the defendants to feel compelled to ensure that good and adequate security was provided for the lodge and its workers, especially the first and second plaintiffs who were living in the lodge. This observation is strengthened by the fact that a Tim Wild, the former Manager of the lodge had assaulted one of the men who was involved in this robbery before leaving Woitape. It seems that this robbery, was in retaliation of the assault by Mr. Tim Wild on one of the men that committed the robbery. This inference can be drawn from the fact that when the criminals broke into the lodge they first asked for the ""smart white man"". To my mind, this supports my observation that the motive for the robbery was for those criminals to get even with Tim Wild for assaulting one of them. The plaintiffs in that regard happened to be innocent victims who were caught in an unfortunate situation. 

29.	 But even when putting aside the incident involving Tim Wild, it is my firm opinion that the defendants had a duty to ensure that the premises were reasonably secure and safe for its employees. I do not think the perimeter fence of the lodge in the condition it was at the time of the robbery satisfied and discharged the duty owed to the plaintiffs by the defendants. The lone unarmed guard provided for the lodge was also in my opinion insufficient. Thus the only conclusion I can reach is that the defendants were in breach of their duty to provide reasonably safe and secure work place for the plaintiffs: A.C.I Metal -v- Boczulik (1964) 110 C.L.R. 372 and Ashdown -v- Williamson [1957] 1 Q.B. 409 (C.A.). 

30.	 The defendants have placed reliance upon Karawari Lodge Pty Ltd -v- Bernard Luck (1998) S C 553, to deny liability. In that case, the respondent was managing the lodge owned by the appellant. The patronage of the lodge included tourists, it was situated in East Sepik. The respondent managed the lodge between 1985 and 1988. The lodge had no security problems until August, 1988, when the lodge was attacked by six heavily armed men. The men were armed with guns. They held up the respondent and a group of tourists who were staying at the lodge. A large quantity of goods were stolen from the lodge by the men and escaped. No one was injured. Security became a concern for the first time after the robbery. The respondent and the appellant discussed the security issue after the robbery and the respondent was allowed by the appellant to employ locals in the lodge, including a single security guard who was armed with a short gun to guard and protect the lodge and the respondent. On the night of 20 October, 1988, another heavily armed group of the men again attacked and robbed the lodge. At the time of the robbery there were also tourists staying at the lodge. When the respondent tried to intervene he was struck on back of the head and spine for which he later sought and received compensation under the Workers Compensation Act, Chapter 179. The respondent then instituted proceedings claiming damages against the appellant. His action in the National Court was based on occupiers'' liability under s.52 of the Wrongs (Miscellaneous Provision) Act, Chapter 297, and on common law tort of negligence for failure by the appellant to provide a safe work place for him. The trial judge rejected the respondent''s claim based on occupiers'' liability but awarded K79, 403.30 to the respondent for the appellant''s failure to provide safe work place for the respondent. 

31.	 The appellant appealed the decision of the National Court. The Supreme Court in allowing the appeal held that the appellant had taken reasonable steps to protect the lodge and the respondent after discussing the security issue with the respondent and allowed the respondent to employ locals, including an armed security guard. The Supreme Court said the main issue the Court had to determine in that case was whether the appellant as an employer took reasonable steps to protect the lodge and its employees, including the respondent from risk of injury from attacks by the criminals. The Supreme Court said, if the type of employees'' work involved collecting and keeping large amounts of money, it could attract criminals to the work place, thus it was a factor to take into account by the employer. The Court said:

""…It is the employer''s duty to take reasonable steps to ensure or protect the safety of an employee from unnecessary risk of injury intentionally caused or otherwise. This includes risk of injury intentionally caused by a third party which includes criminals. It is the duty of the employer to provide adequate and readily available security measures to protect the employee at the employee''s work place. There is no perfect system of work which is free from any risk and there is no such absolute obligation on the employer to provide such a system. It all depends on the circumstances of each case. The test is whether the employer has taken reasonable care, paying proper attention to the risk and paying reasonable attention to the other relevant circumstances"". 

32.	Having regard to these principles, I am not satisfied that the defendants in this case took reasonable steps to protect the lodge and the plaintiffs against risk of being robbed and attacked by criminals. The fence around the lodge as noted was made of wood, sticks and chicken wire, it was old and was in serious need of repair. The main gate to the lodge was also made of wood, it could be easily opened. The lodge had inadequate lighting and after 10:00 pm, there were no security lights at all for the rest of the night. Also, there was only one unarmed guard for the lodge. There is also no doubt in my mind that, the plaintiffs would have kept cash at the lodge from the takings. This is another reason why there was need for better security. 
 
33.	There is evidence from the first plaintiff''s affidavit sworn on 27 November, 2002, that adequate, proper and secure fencing for the lodge, a reliable standby generator, police manpower at the local police station and a licensed firearm were requested from the defendants but those requests were not attended to by the defendants. It should be noted that according to the first and second plaintiffs, there were no policemen stationed at the local police station at the time of the robbery. This was another compelling reason why the defendants needed to improve security at the lodge.

34.	I find that the circumstances in the case before me are distinguishable from those in Karawari Lodge Pty Ltd -v- Bernard Luck (supra). The defendant in this case did nothing to improve security and lighting at the lodge even after the plaintiffs requested them, thus the defendants were in clear breach of their common law duty to provide safe and secure work place for the plaintiffs. The defendants are therefore liable to the first and second plaintiffs for general damages. 

35.	The plaintiffs are also claiming other damages. Thus they are claiming:

1.	General damages for pain, humiliation, trauma and distress.

2.	Exemplary damages for breaches of common law and statutory duties by the defendants.

3.	Special damages for out of pocket expenses in the sum of K8, 966.00 and loss of personal belongings in the amount of K3, 020.00.

4.	Costs.

36.	The plaintiffs have not referred me to any case law to guide me in deciding the quantum of damages, I will therefore do the best I can in deciding plaintiffs'' quantum of damages. 

37.	I deal firstly with the claims for special damages. Amounts of K8, 966.00 and K3, 020.00 are claimed for special damages. Amount of K8,966.00 is claimed for out of pocket expenses and the amount of K3,020.00 is claimed for loss of personal belongings, this claim appears to arise from paragraph 10 of the first plaintiff''s affidavit sworn on 20 November, 2002, which relates to loss of personal belongings resulting from the robbery. The special damages need to be claimed specifically with particulars and should be strictly proved: Stroms Bruks Aktie Bolag -v- John Peter Hutchison [1905] A.C 515 at 525 to 526. This principle has been stressed and applied in a number of cases by the National Court: Bepiwan Ambom -v- Motor Vehicles Insurance (PNG) Trusts (MVIT) (1992) N1116; Joe Maguwean -v- The State [1992] PNGLR 367; Banz Kofi Fectori -v- Ramond Apa N2374; Roslyne Kusa -v- MVIT N2328; Post & Telecommunication -v- MVIT N2479 and Delphi Corporate Investigations -v- Bevan Kipit N2480. 

38.	In the instant case, the plaintiffs have not adduced any evidence to show when and how the claims for out of pocket expenses amounting to K8,966.00 were incurred. For instance, there is no evidence to prove and substantiate the claim, evidence such as plane tickets, accommodation warrants and so on. It follows that the amount claimed for out of pocket allowances has not been proved and it should be dismissed. In regard to the claim for K3,020.00 for loss of personal belongings, I find that this claim has not been properly pleaded. It is claimed as damages, but whether it is claimed as general or special damages is not pleaded clearly in the Statement of Claim. It appears that these amounts have been claimed as special damages, in which case they have to be strictly proved. The pleadings do not state whether the amounts claimed are for value of goods lost or for amount of cash lost. The pleadings are vague. The Court should not be left to speculate. The pleadings must be clear so that not only the defendants should know what they are to defend but the Court should also know the exact nature of the claims. For these reasons, I also dismiss the claim for K3,020.00.

39.	In regard to claims for general damages for pain, humiliation, trauma and distress, there is evidence that the plaintiffs were physically assaulted and threatened with guns. On the next morning Ivoro Eve noticed that the first plaintiff had a swollen face, which I have no doubt was as a result of being assaulted by the criminals during the robbery. I have also for reasons given found that the second plaintiff was raped by three criminals during the robbery.

40.	I have considered claims for damages for the first and second plaintiffs separately from claims for damages for the third plaintiff for the reasons I will canvass later in the judgment.

41.	In regard to general damages for the first and second plaintiffs, I find that this case is somewhat similar to the case of James Robert Colbert -v- Independent State of Papua New Guinea [1988-89] PNGLR 590; more particularly in regard to the common law duty on the employer to ensure that the employee was not unnecessarily exposed to risk of injury, including injuries intentionally caused by third parties such as criminals. That case was about the injuries sustained by a 36 years old technical teacher employed at Idubada Technical College just outside of Port Moresby in 1983. The plaintiff was struck on the head by a stone thrown by an intruder when he went to investigate a noise at a neighbor''s residence after dark. The house the plaintiff was living in was also in a high risk area. The security provided was inadequate despite requests for improved security, lighting was also inadequate and there was no fence. The plaintiff in that case went through brain surgery as a result of a serious head injury he sustained when he was hit with a stone by the intruder. The plaintiff was awarded K70, 000.00 in general damages for pain and suffering and loss of immunities. I find that case helpful in deciding the quantum of damages for the first and second plaintiffs.

42.	The types of injuries suffered by the first and second plaintiffs were of course, not as serious as those suffered by the plaintiff in James Robert Colbert''s case. It follows that damages awarded to the first and second plaintiffs in this case should not be as high as the damages awarded in James Robert Colbert.

43.	I think it is convenient and necessary that the quantum of damages for the first and second plaintiffs be determined separately.

44.	As a further guide in deciding the quantum of damages for the first and second plaintiffs, I refer to a few other cases where general damages were awarded in favour of the plaintiffs after their employers failed to provide safe work places. In Wilhelm Lubbering -v- Bougainville Copper Ltd [1977] PNGLR 183, a 29 year old plaintiff employed by Bougainville Copper Ltd had his forefoot palpitated by a machine he was operating at his workplace when his leg was caught in the machine. The accident resulted from the employer not providing proper instructions to the plaintiff on how to use the machine. He lost 70% use of his leg. The plaintiff was awarded K45, 000.00 . In Edwards -v- Jordon Lighting [1978] PNGLR 273, a 26 year old electrician was standing on a ladder doing electrical fittings to wharf premises at Kieta, in North Solomon Province when he fell and seriously injured himself. He suffered multiple injuries including fractures to both heels, fractures of the pelvis and right wrist. The injuries were permanent. The plaintiff was awarded K17, 000.00. In this case, the plaintiffs did not suffer any such serious physical injuries. Their injuries can be described as minor when compared to those sustained in the above cases, quite apart from the psychological and emotional injuries they suffered. In the case of the second plaintiff she was pack raped by three men, this adds a more serious aspect to her case, therefore in my view it is a factor which should aggravate her damages.

45.	It is appropriate to note and to take into account that Wilhelm Lubbering -v- Bougainville Copper Ltd (supra) and Edwards -v- Jordon Lighting (supra), were decided over thirty years ago and the measure of damages awarded in those cases are quite out dated and PNG Kina has since depreciated greatly in value.

46.	There is evidence that after the robbery, the first plaintiff continued to reside at the lodge and in 2002, he contested one of Woitape Local Level Government elections and won. He was terminated from his employment in November, 2006, when his services were no longer needed by the defendants.

47.	 In 2007 general elections, he contested the Goilala Open seat but lost.

48.	There is evidence at least in respect of the first plaintiff that he stayed on at the lodge and continued working at the lodge until November, 2006, when he was terminated from his employment.

49.	The evidence from the first plaintiff is that after the robbery, the only improvements made to the security at the lodge were a few more security lights installed and the number of security guards was increased. Thus despite continued lack of improved security at the lodge, the first plaintiff elected to live in the lodge, until he was terminated by the defendants. I find this conduct self defeating for him and it should mitigate his damages.

50.	Given the circumstances of the case, including the types of injuries suffered by the plaintiffs including mental and psychological damages, and having regard to the types of damages awarded in the cases cited above, I award K12, 000.00 to the first plaintiff.

51.	In regard to the second plaintiff, from the evidence before the Court the physical injuries she sustained do not differ from those sustained by the first plaintiff, however, her case is aggravated by the fact that she was pack raped by three criminals. In those circumstances, I award K20, 000.00 to the second plaintiff.

52.	In regard to the claims for exemplary damages, they are punitive in nature, purpose of which is to punish wrongdoers. The principle test to be applied in considering exemplary damages is whether the conduct of the defendants had been high handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiffs'' rights, which would clearly include constitutional rights: Uren -v- John Fairfax & Sons Pty Ltd (1966) 117 C.L.R 118 at 129.

53.	In this case, the plaintiffs'' claims for exemplary damages are based on the alleged breaches of statutory duties by the defendants under the Workers Compensation Act, namely the defendants'' failure to lodge compensation claims for the plaintiffs for their injuries and for the defendant''s alleged failure to take out insurance covers for the plaintiffs. These claims are pleaded in paragraphs 4, 10, 16, 17 and 18 of the Statement of Claim. The defendants have denied paragraphs 4, 16, 17 and 18. In regard to paragraph 10 the defendants refused to reply to the allegation arguing that the paragraph was stating a point of law.

54.	I find that these paragraphs are insufficiently pleaded, they are pleaded generally and they are vague. For instance, no specific provisions of the Workers Compensation Act, have been pleaded, i.e. provisions of the Act, which they claim have been breached by the defendant, so as to give the defendants and the Court precise nature of their claims or allegations. Furthermore, these paragraphs do not specify which of the plaintiffs they relate to. The paragraphs make blanket claims for all three plaintiffs, but the third plaintiff is not an employee of the defendants. These paragraphs, which plead relief under Workers Compensation Act, should have been pleaded specifically for the first and second plaintiffs only. The plaintiffs have therefore failed to plead precise nature of their claims: Eliekim Laki -v- Maurice Alakuku, Secretary for Department of Lands and Physical Planning [2000] PNGLR 392. 

55.	The failure by the plaintiffs to plead specific provisions of the Workers Compensation Act, which the plaintiffs claim have been breached by the defendants is crucial and in my opinion such failure renders the pleadings in the paragraphs in question bad: Demba Kalo -v- Connie Akaya (2007) N3213; Newsat Ltd -v- Telikom PNG Ltd (2007) N3448. The paragraphs also offend against O 8 rr 27, 28 and 32 of the National Court Rules, in that they are generally pleaded and are embarrassing and prejudicial to the defendants. They leave the defendants guessing on what exactly is pleaded in those paragraphs the Court is also left to speculate on the exact nature of the claims: Paul John -v- Gerd Lindhardet and Servicom Pty Limited (1999) N1938. 

56.	If I was to order exemplary damages against the defendants, I would do so for a breach of statutory duty, because such breach would deny a right given to the plaintiffs and would satisfy the test for exemplary damages. In this case for the reasons given, the plaintiffs have not demonstrated to the Court that their statutory rights have been denied as a result of an alleged breach of a statutory duty by the defendants.

57.	Even if the Court was to assume that the plaintiff''s claim is made under s 42 (1) (b) of the Workers Compensation Act, the claim would still be flawed because the subsection applies to an employee who is either totally or partly incapacitated for over a day. In this case, there is no evidence that the first and second plaintiffs were even partly incapacitated for over a day. The evidence before the Court is that they were at work the following morning after the robbery. There is also no medical evidence before the Court of the injuries the plaintiffs suffered and the extent of those injuries. As I alluded to earlier, based on the evidence before the Court, it is fair and reasonable to conclude that the physical injuries suffered by the first and second plaintiffs were not serious, let alone life threatening. 

58.	Even if I am wrong in my decision in refusing claims for exemplary damages by the plaintiff, more particularly because the defendants have conceded that they have not taken out insurance covers for the plaintiffs, I am of the firm opinion that any damages they may be entitled to are sufficiently covered by damages awarded to them for general damages.

59.	For the forgoing reasons, I dismiss the plaintiffs'' claim for exemplary damages.

60.	In regard to the third plaintiff, I find that he has no standing to claim damages against the defendants because he is not an employee of the defendants. The claims here are based on Workers Compensation Act, for the alleged failure by the defendants to provide safe work place for its employees and for the alleged failure by the defendants to report injuries suffered by its employees and to take out insurance policies for the employees. The third plaintiff cannot make these claims against the defendants because he is not an employee. He also cannot claim damages under a common law duty of care because he is not an employee or a servant of the defendants. It is clear from paragraphs 3 and 4 of the Statement of Claim that all three plaintiffs are claiming damages as plaintiffs. The third plaintiff not being an employee, in my view should have claimed damages under s. 51 (1) (b) of Wrong (Miscellaneous Provisions) Act, under occupiers'' liabilities, in order for him to have a cause of action against the defendants and for his claims to be considered or under s. 52 of Wrong (Miscellaneous Provisions) Act, see; Andrew Caswell –v- National Parks Board [1987] PNGLR 458. It follows that all the claims for damages made for and on behalf of the third plaintiff are dismissed.

61.	The plaintiffs have not pleaded and claimed interest on damages, I am therefore of the opinion that I have no powers to award interest on the damages awarded. 

62.	The defendants will pay the plaintiffs costs and incidentals to the proceedings. However, having dismissed all the claims made for and on behalf of the third plaintiff, I order that only two thirds of plaintiffs'' costs be paid by the defendants.

63.	The orders of the Court are as follows:-

1.	All the claims for and on behalf of the third plaintiff are dismissed.

2.	The defendants will pay K12,000.00 to the first plaintiff in general damages.

3.	The defendants will pay K20,000.00 to the second plaintiff in general damages. 

4.	The claims for special and exemplary damages are dismissed.

5.	The defendants will pay only two thirds of the plaintiffs'' costs and incidentals to the proceedings.

64.	Orders accordingly.

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Parua Lawyers: Lawyer for Plaintiffs
O''Briens Lawyers: Lawyer for Defendants''