N4086

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 93 OF 2006

BETWEEN:

ERNEST POKAU
Plaintiff

AND:

GORDON WETTIE
First Defendant

AND:

JACOB TEMO
Second Defendant

AND:

FRANK LEME
Third Defendant

AND:

SAM INGUBA AS THE POLICE COMMISSIONER
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Davani .J
2010: 24th June
27th July

EVIDENCE - What is primary evidence – evidence of treatment rendered, injuries sustained as at the date of incident – medical evidence – primary evidence is good evidence – secondary evidence or evidence of disabilities suffered must be based on primary evidence.

PLEADINGS - Matters pleaded, must not contradict evidence, vice versa – existing contradictions – failure of claim.

Facts

Default judgment was entered for damages to be assessed. The claim is one for damages for injuries allegedly sustained as a result of beatings received from policemen. The plaintiff relied only on Discharge Summary to prove the injuries received at the date of the incident. The other medical report was prepared about a year later and which described injuries sustained as at the date of the incident.

Issues

1.	Whether the Court can assess damages on secondary evidence, i.e. evidence or report describing injuries sustained at the date of the incident without the benefit or assistance of primary medical reports.

2.	Whether the Court can assess damages on documentary evidence which contradict each other and contradict also, facts pleaded in the Statement of Claim.

Held

1.	When deciding on damages to be assessed, the affected party must produce primary evidence of injuries sustained i.e. the admission records, the treatment records, information that will go towards determining the injuries sustained at the date of the accident and treatment rendered. It is not sufficient for a party to produce medical reports prepared some years after the incident describing injuries received at the date of the incident.

2.	Evidence produced by the affected party that contradicts particulars pleaded in the Statement of Claim, will not be accepted as good evidence because the pleadings lay the foundation of a claim.

List of authorities 

Papua New Guinea cases

•	Het Pakena v. The State and Ors (N1369)
•	Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamuna, Paul Piru, Powes Parkop and Members of the Student Representative Council and all those students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401
•	Obed Lalip for himself and on behalf of Marae Kulap and Francis Minalo v. Fred Sikiot and The State (1996) N1457
•	Madiu Andrew v. Mineral Resources Development Company Ltd, Koiari Tarata, Chairman – Board of Directors and Sir Mekere Morauta, Kt, MP, Prime Minister (2004) N2601
•	William Mel v. Coleman Pakalia & Ors (2005) SC990
•	Galo Lodge Limited and Barunke Kaman v. Constable Richard Kini and 4 others, WS 1477 of 2006 dated 14th June, 2007
•	Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363 
•	Papua New Guinea Banking Corporation v. Jeff Tole [2002] SC 694
•	Jacob Simbuaken v. Neville Egari and the Independent State of Papua New Guinea, WS 512 of 1994 dated 29th September, 2009
•	Wama Kints & 3 Ors v. Senior Constable Pius Kundi, Sergeant Vonomo Makis, Commissioner for Police & The Independent State of Papua New Guinea (2001) PGNC 88, N2113
•	Yange Lagan & 58 Ors v. The State [1995] N1369, WS 419 of 1995

Overseas cases:

•	Subramaniam v. Public Prosecutor [1956] 1 WLR 965

Other References

•	McGregor on Damages, (Sweet & Maxwell), 13th Edn, 1972, London

Counsel

W. Hagahuno, for the Plaintiff
T. Tanuvasa, for the fifth defendant
No appearance, for the first, second, third and fourth defendants

27th July, 2010

DECISION

1. DAVANI .J: This matter is before me for hearing on assessment of damages, default judgment having been entered against "the defendants" on 7th November, 2007 (Court Order of 7th November, 2007 and entered on 20th November, 2007).

Background

2. The plaintiff's Writ of Summons and Statement of Claim was filed on 10th February, 2006 by Williams Attorneys. The Statement of Claim pleads that the plaintiff was shot by policemen and severely wounded. That this incident occurred on 26th January, 2004 at Waigani Drive in Port Moresby. The Statement of Claim pleads that the plaintiff was in a Toyota Corolla Sedan Registration No. BBM-671 with one other male person, when the vehicle was shot at by policemen after which the victim was dragged out of the police vehicle and severely beaten up by policemen. He claims that he received gun shot injuries to his right elbow region as well as over the right lower thorax region of his back.

3. Par.14 of the Statement of Claim pleads that the plaintiff was admitted to the Port Moresby General Hospital whilst unconscious, later regained consciousness the next day, was treated and was then discharged.

Analysis of evidence and the law

(i)	The plaintiff's claim

4. The Statement of Claim pleads that the first to the third defendants were at that time policemen and were acting in the course of their employment with the fifth defendant State when they shot and beat up the plaintiff. He pleads that the fourth defendant, then Police Commissioner, is vicariously liable for the acts and omissions of the first, second and third defendants. The Statement of Claim also pleads that the fifth defendant State, as the first, second, third and fourth defendants' employer, is liable for the acts and omissions of the first, second and third defendants under the Wrongs (Miscellaneous Provisions) Act ('Wrongs Act').

5. In relation to liability, although, vaguely pleaded in par.6 of the Statement of Claim, the Statement of Claim does not plead;

-	That the policemen were acting in the course of their employment with the State when the incident/shooting allegedly occurred;

-	Par.6 is also not supported by evidence that;

(i)	The policemen were on duty that fateful night.

(ii)	That it was whilst on duty that they were told or authorised by their superiors to attack the plaintiff.

(iii)	That their actions were authorised by the fourth defendant Commissioner and ultimately, the State.

6. Obviously, the nexus between the plaintiff and the third and fourth defendants, as required by s.1 of the Wrongs Act, more particularly the aspect of vicarious liability, is not properly pleaded. Although, default judgment was entered, it can be revisited (William Mel v. Coleman Pakalia & Ors (2005) SC990), I can dismiss the claim on that basis alone. Which is why it is incumbent on the Judge entering default judgment, to always carefully screen the Writ of Summons and Statement of Claim because where there are serious anomalies in the Statement of Claim, as in this case, default judgment should not be entered and the application should be dismissed (see Galo Lodge Limited and Barunke Kaman v. Constable Richard Kini and 4 others WS 1477 of 2006 dated 14th June, 2007). Notwithstanding, I will proceed to consider the damages component of this claim.

(ii)	Damages

7. The plaintiff claims to have suffered serious injuries as a result and pleads it in the Statement of Claim.

8. The particulars of injuries alledgly suffered are pleaded at pars. 20 to 23 of the Statement of Claim and read as follows;

"20. On examination, it was revealed that the plaintiff received gun shot injuries to his right elbow region as well as over the right lower thorax region of the back.

21.	Immediately after the shooting the elbow was bleeding profusely whilst the plaintiff felt uncomfortable and breathless due to the thoracic penetrating injury from the bullet.

22.	Radiograph of the elbow reveals that the plaintiff suffered a communicated fracture of the elbow region of the olecranon with multiple bullet remnants in situ. The facture was multifragmented and extended proximally, traversing the articular surface of the elbow joint.

23.	The thorax wound was oozing blood and was tender with swelling. The right thoracic wall was splinted."

9. Par.24 of the Statement of Claim pleads particulars of permanent injuries. It reads;

"PARTICULARS OF PERMANENT INJURIES SUFFERED

24.	Dr Ikau Kevau reviewed the plaintiff on the 14th November, 2005 noted the permanent injuries suffered by the plaintiff as follows;

A.	Elbow Injury

(a)	Right elbow in a fixed flexion position restricting and seriously affecting movement ranges. Being the dominant hand, he is now restricted with all functions of the dominant hand.

(b)	The scars of split graft are completely healed, but tend to be adherent, thus enhancing mobility restrictions.

(c)	Underlying fracture healed in a fixed bony mass, contributing significantly to limb immobility and functions restrictions.

(d)	Finger gripping and grasping functions are very poor whilst pain is constant and activities turn to aggravate it.

(e)	All rotary movement around the elbow are restricted and the plaintiff has numbness and paraesthesis distally from nerve injuries to the gun shot.

(f)	As a result of the injury to the elbow, the plaintiff has suffered 70% loss of the efficient use of the upper limbs of his right hand.

B.	Thorax Injury

(a)	Continuing pains in the chest wall around the shot site with all exertional forces aggravating pains.

(b)	Often running into breathless situations due to chest wall splinting secondary to gun shot injuries to the chest wall.

(c)	Bullet remnants in situ, which cannot be extracted.

(d)	Coughing or sneezing worsening chest wall pains.

(e)	Occasional expectoration of blood as a result of the chest injury.

(f)	As a result of the injury to the thoracic region, the plaintiff has suffered 30% loss of his thoracic wall function."

10. The Statement of Claim pleads the ancillary reliefs sought as;

"AND THE PLAINTIFF CLAIMS;

(a)	General damages (including damages for denial of Constitutional rights, loss of properties and for personal injuries sustained including pains, hardship and suffering, loss of efficient use of his right hand and thoracic region of his body, mental stress and frustration) say in the sum of K150,000.00.

(b)	Exemplary damages, say in the sum of K60,000.00.

(c)	Special damages.

(d)	Interests.

(e)	Legal costs.

(f)	Other orders the Court deems appropriate."

11. The plaintiff submits that his injuries are very serious and the disabilities he suffers are permanent, to be borne for the rest of his life. The plaintiff submits that at the date of the shooting in February, 2002, he was just commencing his law studies at the University of Papua New Guinea. He claims that the injuries have prevented him from pursuing his studies.

12. The nature of the injuries allegedly suffered are as described above. However, although liability was resolved by way of entry of default judgment against the defendants, the plaintiff is still required by law to prove his damages with cogent, credible and admissible evidence. Numerous cases have been decided in this jurisdiction where the Courts have emphasized this time and time again. I set out some of these cases.

13. The case on point is Obed Lalip for himself and on behalf of Marae Kulap and Francis Minalo v. Fred Sikiot and The State (1996) N1457, where His Honour Injia .J (as he then was) stated;

"Just because the plaintiff has obtained default judgment does not mean that he is entitled as of right to receive damages. He must prove the damages suffered by credible evidence."

14. It is trite law that a plaintiff can only claim damages on what has been pleaded in the Statement of Claim. In the case of Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamuna, Paul Piru, Powes Parkop and Members of the Student Representative Council and all those students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401, the Supreme Court stated at pg.405;

"A party cannot obtain relief which has not been requested or sought in the pleadings."

15. This position was also emphasised in the case of Madiu Andrew v. Mineral Resources Development Company Ltd, Koiari Tarata, Chairman – Board of Directors and Sir Mekere Morauta, Kt, MP, Prime Minister (2004) N2601. His Honour Kandakasi .J said the following at pg.2;

"Pleadings in a civil claim play a very vital role. They lay the foundation for a claim and dictate the kind of evidence the parties can call and the grant of a relief subject to evidence proving it. Thus, in order to enable the court to properly assess and arrive at a reasonable award of damages, the law requires a plaintiff to properly plead and then establish by appropriate evidence his loss or damages. Both this Court and the Supreme Court have denied the plaintiff's grant of relieves that have no foundation in the pleadings even if there is evidence of it. The Supreme Court affirmed this in Steven Charles Pickthall v. Lae Plumbing Pty Ltd and many other subsequent judgment with the latest in Papua New Guinea Banking Corporation v. Jeff Tole. This stems from O.8 r.33 of the National Court Rules, which requires claims for damages arising out of a death or personal injuries to plead specifically the injury or loss with particulars of the loss."

(a)	Proof of injuries suffered

16. The plaintiff relies on his affidavit sworn on 13th February, 2008 and filed on 17th June, 2008. The matter was to proceed to hearing on submissions only as directed by His Honour Justice Kandakasi when parties appeared before him in the Listings Court on 11th February, 2010. There, His Honour directed the following;

(a)	That the matter would be listed for trial on 16th June, 2010;

(b)	Trial is only on the issue of general damages;

(c)	The plaintiff file and serve Notice of Trial by or before 19th May, 2010;

(d)	Relevant Notices under the Evidence Act as the use of the affidavits to be filed;

(e)	The defendants to pursue out of court settlement discussion prior to trial date if it wishes, if not to appear in Court and make submissions;

(f)	Parties to come with submissions to hand up to Court and serve copies at the conclusion of trial.

17. The State did not have any evidence. It also did not file any Notices to either cross-examine the deponents or object to various parts of the plaintiff's affidavits. In relying on Kandakasi .J's directions, parties came to Court prepared to make submissions only. I therefore did not insist on the plaintiff being present for his evidence to be tendered through him.

(b)	General damages

18. The plaintiff claims to have been shot in the right elbow as well as his right back. He claims to have been later dragged out and beaten up by the first, second and third defendants. The beatings are described in the Statement of Claim as "pounding" on his elbow with a heavy object as well as being "gun-butted" and "booted" after which he then fell unconscious.

19. The nature of the injuries described, appear to be serious. The plaintiff claims he was admitted to the Port Moresby General Hospital on 26th January, 2004. What is the medical evidence confirming the treatment he received?

20. The only evidence before the Court is a Discharge Summary from the Port Moresby General Hospital. The date of admission on that discharge summary is "21/1/04" and discharge date is "20/2/04".

21. The other report is allegedly prepared by a Dr. Ikau Kevau, dated 14th November, 2005. I say "allegedly" for the many reasons I raise later below.

22. Firstly, the injuries supposedly suffered or sustained by the plaintiff are serious. But there are no medical records of the plaintiff's admission to the Port Moresby General Hospital.

23. Secondly, if the plaintiff had been in the hospital for that period of time, there must be medical records of treatment rendered to him over that period of time, which is nearly a month. But there are none in evidence before me.

24. Thirdly, there are many discrepancies in that Discharge Summary, being;

•	The date of admission on the Discharge Summary is "21/1/04". However, the Statement of Claim pleads that the plaintiff was injured and admitted to the hospital on 26th January, 2004.

•	The Doctor in charge who signed off on the Discharge Summary, states the date of signing off at the bottom of his signature as "8/03/04". However, the date of discharge on the Discharge Summary is "20/2/04".

25. The report allegedly or supposedly prepared by Dr Ikau Kevau speaks of treatment the plaintiff was supposed to have received when he was admitted. In that report, the Doctor also describes disabilities supposedly suffered. I note the following discrepancies in that report. These are;

•	The report states that the plaintiff was shot by police on "21st January, 2004". However, the Statement of Claim pleads that he was shot on "26th January, 2004".

•	The doctor describes what the plaintiff allegedly suffered from immediately after being shot. He states;

"He was haemodynamically unstable from blood loss from the gun shot wounds. He became confused and was in agonizing pain from the wounds. The elbow was profusely bleeding and needed compressive bandaging to control the haemorrhage. He was feeling uncomfortable and breathless because of the thoracic penetrating injury from the bullet."

26. What did the doctor base this description on? Did he have a primary report before him or was he relying on the plaintiff's description of what happened or was he actually there? The latter suggestion can be ruled out because the evidence is that he was not there. Also, the latter suggestion that the plaintiff described what happened to him, is not possible because the plaintiff is not a medical doctor. If the doctor is describing injuries the plaintiff sustained when he was shot at and beaten up, then the Court raises the inevitable question which is that was Dr Kevau the Doctor who treated the plaintiff immediately after the accident and whilst he was hospitalized? There is no evidence that this is what occurred. Then how is it the report describes, in medical terms, the injuries sustained and the treatment administered to the extent of saying "he was feeling uncomfortable and breathless…" and that "the elbow was profusely bleeding and needed bandaging to control the haemorrhage."

27. The doctor's report further describes injuries as "the soft tissue over the elbow was dirty and had a potential of becoming infected and therefore antibiotic was administered immediately. Initial examination revealed no major blood vessel injuries. There were restrictions of elbow movement and weakness in radio nerve powers were elicited." Again, the description of the injuries like "the soft tissue over the elbow was dirty…" suggests that the doctor saw the injuries, immediately after the accident. But he did not, because the report was allegedly prepared about a year after the accident. Although, the Doctor (Kevau) was not cross-examined on this, more particularly, the veracity of the report and its genuiness, I do not need the benefit of cross-examination because the queries I raise are only too obvious and are matters the plaintiff's lawyers should have addressed the Court on and clarified by way of primary rather than secondary evidence.

28. Lastly, if the plaintiff had suffered these serious chest injuries, the Discharge Summary does not refer to any chest injuries. The Discharge Summary does not even refer to treatment of serious chest injuries, which is what the medical report makes them out to be. In fact, the medical report refers to skin grafting and debridgment of the injuries. That means the plaintiff was operated on. There is no medical evidence that the plaintiff was operated on and his wounds debridged and that skin grafting also occurred.

29. To illustrate the above, the Discharge Summary describes the "admitting diagnoses as GSWUR elbow". (my emphasis) That is the only injury described. If the chest injury was that serious as portrayed to me by the plaintiff's lawyer through the medical report, why is it that it is not stated in the Discharge Summary? That is a question that remains unanswered and does not assist the plaintiff's claim in any way.

30. Again, I say with no hesitation that this Discharge Summary is in fact a document that was created for the purposes of lodging a claim such as this which, in my view, is fraudulent in nature. Secondly, I can conclude based on my discussions above, that Dr Kevau did not prepare the medical report, that if he had, a person of his calibre would not describe primary injuries that he did not even see but that if he were to describe and rely on them, he would do that, based on primary reports from the admitting hospital (my emphasis).

31. As to the law, the evidence of medical practitioners must be attached to their affidavits. I held this in some cases I deliberated on and which are also principles held in other cases decided by my brothers. A similar situation occurred in Jacob Simbuaken v. Neville Egari and the Independent State of Papua New Guinea WS 512 of 1994 decided on 29th September, 2009. In that case, the plaintiff's lawyer could not explain how and why they were not able to produce the doctor in Court for purposes of cross-examination. The report prepared by a doctor was attached to the plaintiff's affidavit. Although, the State raised objections in relation to its tendering, I accepted it, ruling I would give it the appropriate weight.

32. In this case, we have the same scenario where Dr Kevau's report is attached to the plaintiff's affidavit. That report should best be attached to Dr. Kevau's affidavit so he will then be cross-examined on the contents of his affidavit. It is in fact hearsay material which does not assist the plaintiff at all because it describes injuries supposedly sustained on the date he was supposedly admitted. Another factor which only reinforces the Court's reluctance to rely on the medical reports is that the Statement of Claim pleads a different date to what the medical report states. The medical report states the date of admission to be "21st January, 2004" whereas the Statement of Claim describes the date of admission to be "26th January, 2004". This is a serious anomaly in the evidence and the pleading.

33. Dr Kevau is based in Port Moresby. There is no reason why he could not have sworn an affidavit. This is because his medical report is best produced to the Court attached to his affidavit, to support his lengthy description of the primary injuries suffered and which affidavit should also depose to whether he was the doctor who treated the victim on his or her admission to the hospital and which position I took in the Jacob Simbuaken case (supra). Additionally, although it is a report that also describes permanent disabilities, there must also be before the Court, reports, medical records and admission cards showing the nature of the injuries as at the date of the incident/accident and the kind of treatment rendered. It is not sufficient for a party to rely on a report prepared some months or years after the accident and rely on it as evidence of injuries suffered and treatment rendered at the date of incident. That report must be based on primary evidence or earlier reports for the Court to be satisfied that indeed, those were the injuries sustained and treatment rendered.

34. As I always say, the Courts must be vigilant in ensuring that the proper Court processes are followed. Court processes is also in relation to the evidence to be relied on by the Court. Evidence that is hearsay in nature and that goes towards establishing the truth of what is contained in the Statement of Claim will be inadmissible or should not be relied on by the Court. The evidence now before me, is, strictly speaking, hearsay evidence, because it seeks to establish the nature of the injuries sustained by the plaintiff at the date of the incident and the lasting disabilities. It should not be brought through the plaintiff but through the doctor responsible. The Court must prevent the abuse of its processes. In saying that, I refer to decision Wama Kints & 3 Ors v. Senior Constable Pius Kundi, Sergeant Vonomo Makis, Commissioner for Police & The Independent State of Papua New Guinea (2001) PGNC 88 N2113. In that case, in pgs 8 and 9, the Court said this;

"Whilst the State did not present any evidence disputing the general claim, it is still necessary for the plaintiff to produce appropriate evidence in Court to support the quantum of the claim…"."

35. In the case of Yange Lagan & 58 Ors v. The State, [1995] N1369 WS 419 of 1995, His Honour Injia .J (as he then was) when discussing the aspect of damages said;

"…plaintiffs must prove their damages in accordance with established principles as to onus and standard of proof and within the rules of practise and procedure prescribed in the National Court Rules. These are some well established principles as to the standard of proof of damages some of which I have already referred to in recently in Jonathan Mangope Paraia v. The State (N1343). As I have said recently in that case, which is also a case involving a victim of the same police raid, the onus is upon the plaintiff to prove on the balance of probabilities, the damages…".

In McGregor on Damages, (Sweet & Maxwell, 13th Edn, 1972, London), the author said;

"The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case, the proof of such allegation falls on him. Even if the defendants fail to deny the allegations of damage or suffers default, the plaintiff must still prove his loss." (p.935) 
(my emphasis)

Further, as Injia .J also stated in Het Pakena v. The State and Ors (N1369);

"In my view, the minimum requirement in any action is for the plaintiff himself to give admissible evidence in support of his claim…When the primary evidence of the plaintiff is lacking, there is a serious gap in the plaintiff's case, all other evidence inadmissible as being hearsay or hearsay upon hearsay." 
(my emphasis)

Section 37 of the Evidence Act chapter 48 is the law governing a medical practitioner's evidence. It provides the avenue by which medical evidence should be tendered. It states.

"37 - Evidence of scientific examination

(1)	An affidavit made by a Medical Practitioner who has made a medical pathological or other specific examination of a thing setting out – 

(a)	his qualifications; and

(b)	that he has made the examination; and

(c)	the facts that he has ascertained and the conclusion at which he has arrived as a result of the examination is admissible in evidence in any legal proceedings in a Court."

In distinguishing hearsay evidence from original evidence, Aranson, Reaburn and Weinberg in their text "Litigation Procedure" Butterworths second edition at par.30.02 made reference to a statement by Professor Sir Rupert Cross;

"Express or implied assertions, other than the witness who is testifying, and assertions in documents produced to the Court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted." (pg.777)
(my emphasis)

In the case Subramaniam v. Public Prosecutor [1956] 1 WLR 965, the judges there held that evidence "…is hearsay inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made." (779).
(my emphasis)

36. Dr. Kevau's medical report, strictly speaking, and in compliance with s.37 of the Evidence Act, should be attached to his own affidavit when it will then be accepted as good evidence. The evidence in Dr. Kevau's affidavit seeks to establish the truth or the nature of the injuries allegedly suffered by the plaintiff, to then claim damages. As it is, Dr. Kevau's report is hearsay material, which I will not rely on.

37. I will not attach any weight at all to that medical evidence considering the discrepancies and anomalies that I raised. I find the plaintiff has not proven damages on the balance of probabilities.

38. As to costs, I will order that each party pay their own costs of the proceedings because the Court file shows that the former Solicitor-General Mr Gelu had agreed to settle this claim, although he was obviously aware of these serious and debilitating discrepancies. Also, the fact that the State had not filed a Defence allowing this matter to come this far with these obvious deficiencies only necessitates this Order.

Formal orders

(1)	The plaintiff's claim is dismissed in its entirety.

(2)	Each party will pay their own costs of the proceedings.

________________________________________________
Williams Attorneys: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Fifth Defendant
First, Second and Third Defendants were unrepresented.