Aine v State [2011] PGNC 116; N4389 (26 September 2011)

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ASSESSMENT OF DAMAGES - Police raid - Destruction and looting of properties - Loss of houses, household items, domesticated animals, economic trees, cash and food crops -Measure of damages - General damages - Exemplary damages - Proof of - Valuation based on average purchase or retail prices of items in shops and past awards - Inflation taken into account in assessment - Allowance must be made for contingencies - Double claims - Reasonableness of losses.

James Galman Okun & 123 Others -v- The State; WS No. 100 of 1996 (Unnumbered and Unreported Judgment of 02nd March 1998)
Kolaip Panapi & Another -v- Sergeant Poko & Ors (2001) N2274
Peter Wanis -v- Fred Sikiot & The State (1994) N1350
Anis Kewa -v- Desmond Kami & The State (2010) N3899
Andak Kupil -v- The State [1983] PNGLR 350
Lin Wan Xin -v- Wau Yanhang (2001) N2160
Shelly Kupo -v- MVIL (2002) N2282
Roslyne Cecil Kusa -v- MVIL (2003) N2328
Andrew Moka -v- MVIL (2004) SC 729
Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85
Abel Tomba -v- The State (1997) SC 518

1. MAKAIL, J: This is a re-trial matter on assessment of damages following the passing of Hinchliffe, J in 2009 who originally heard the matter and reserved for decision. Liability was determined by entry of default judgment on 31st July 1999. The assessment of damages arises from a police raid at Olna village in Jimi District of Western Highlands Province on 26th January 1995. As a result of the police raid, it is alleged the plaintiffs, 22 in total, suffered loss to their properties. They sought general and exemplary damages including interest and cost of the proceeding against the State.

2. At the re-trial on 12th July, 2010, the plaintiffs tendered 23 affidavits which were marked exhibits "P1" to "P23" and called one of the plaintiffs named James Galman Okun for cross-examination by defence counsel in relation to his affidavits (exhibits "P22" & "P23"). The State offered no evidence. The plaintiffs were part of a group of villagers who took the State to Court in proceeding WS No 100 of 1996 headed by their village councilor named Lapun Aine. Judgment was handed down on 2nd March 1998. The Court struck out their claims and granted leave to them to institute fresh proceeding against the State. This was because the Court found that their names appeared on two lists provided to the Court but did not plead their claims in the statement of claim. This was done to avoid possible double claims: see James Galman Okun & 123 Others -v- The State: WS No 100 of 1996 (Unnumbered and Unreported Judgment of 02nd March 1998) at 4 & 5.

3. According to the statement of claim, they make the following claims which are particularised below:

Lapun Aine 57 years old	500 x 50 x 2 x 3 x	Young & matured coffee trees @ K10.00 Pandanus palm @ K3.00 each Double mattress @ K70.00 each Collar shirt @ K6.00 each TOTAL	K 5,000.00 K 150.00 K 140.00 K 18.00 K 5,308.00	K 5,308.00
Mond Tabil 25 years old	15 x 30 x 10 x 1 x 1 x	Avocado trees young & matured @ K4.00 Sugarcane clumps young & matured @ K4.00 Forks @ K0.70 each Knife @ K45.00 each Overall Trousers TOTAL	K 60.00 K 120.00 K 7.00 K 45.50 K 28.00 K 260.50	K 5,568.50
Seine Okun 49 years old	10 x 8 x 1 x 1 x	Guava trees young & matured @ K1.00 each Soda cups @ K2.50 each Double mattress Rainbow blanket TOTAL	K 10.00 K 20.00 K 70.00 K 20.00 K 120.00	K 5,688.50
Pengem Alu 36 years old	200 x 10 x 4 x	Coffee trees young & matured @ K1.00 each Forks @ K0.70 each Bed sheets @ K6.00 each TOTAL	K 2,000.00 K 7.00 K 24.00 K 2,031.00	K 7,719.50
Justin Waiyan Alu 40 years old	15 x 20 x 1 x 1 x 2 x	15 x Avocado trees young & matured @ K4.00 each 20 x sugarcane clumps young & matured @ K4.00 Coleman (lantern) Bed sheet Collar shirt @ K6.00 each TOTAL	K 60.00 K 80.00 K 62.00 K 6.00 K 12.00 K 220.00	K 7,939.50
Kolip Guants 25 years old	15 x 7 x 1 x 3 x	Bamboo clumps young & matured @ K3.00 each Soda cups @ K2.50 each Double mattress Bed sheets @ K6.00 each TOTAL	K 45.00 K 17.50 K 74.00 K 18.00 K 154.50	K 8,094.00
Kombkun Walep 31 years old	300 x 10 x 50 x 1 x 5 x 1 x	Coffee trees young & matured @ K10.00 each Bamboo clumps young & matured @ K3.00 Pumpkin @ K2.00 each Coleman lantern Pillow @ K3.00 each Sports wear TOTAL	K 3,000.00 K 30.00 K 100.00 K 62.00 K 15.00 K 7.00 K 3,214.00	K11,308.00
Peter Wapi 30 years old	30 x 25 x 1 x 2 x 1 x	Tanget trees young & matured@ K1.00 Sugarcane clumps @ K4.00 each Double Mattress Sports wear @ K7.00 each Handbag Cash money from sales and savings Bride price TOTAL	K 30.00 K 100.00 K 70.00 K 14.00 K 30.00 K 1,300.00 K 1,544.00	K12,852.00
Dal Mund 62 years old	21 x 7 x 1 x 6 x 2 x	Avacado trees young & matured K4.00 Spoons @ K0.80 each Double mattress Domestic piglets @ K70.00 Blankets @ K20.00 each TOTAL	K 84.00 K 5.60 K 70.00 K 420.00 K 40.00 K 619.60	K13,471.60
Paul Wandil 39 years old	18 x 15 x 13 x 1 x 2 x 25 x	Tanget trees young & matured @ K1.00 Soda plates @ K3.00 each Spoons @ K0.80 each Double speaker Radio Double mattress @ K74.00 each Coffee bags (60 x 25 x K1.35 per kg) TOTAL	K 18.00 K 45.00 K 10.40 K 182.00 K 148.00 K 2,025.00 K 2,428.40	K15,900.00
Noliye Amul 35 years old	12 x 50 x 52 x 10 x 10 x 9 x 3 x 1 x 8 x 2 x	Avocado trees young & matured @ K4.00 each Yar tree young and matured @ K4.00 Pandanus palms young & matured @K3.00 each Vegetable garden @ K5.00 each Soda Cups @ K2.50 each Soda plates @ K3.00 each Bed sheets @ K6.00 each Sports wear Domestic pigs @ K200.00 each Blankets @ K20.00 each TOTAL	K 48.00 K 200.00 K 156.00 K 50.00 K 25.00 K 27.00 K 18.00 K 7.00 K 1,600.00 K 40.00 K 2,171.00	K18,071.00
James Bonnong 27 years old	37 x 10 x 3 x 6 x	Avocado trees young & matured @ K4.00 Kerosene stove Single mattresses @ K20.00 each Plates @ K2.50 each TOTAL	K 148.00 K 70.00 K 60.00 K 15.00 K 293.00	K18,364.00

Keli Masol 19 years old	15 x 1 x 7 x 2 x	Tanget trees young & matured @ K1.00 Knife Floor mats (15 meters) @ K5.50 each Domestic cassowaries @ K200.00 each TOTAL	K 15.00 K 45.50 K 82.50 K 400.00 K 543.00	K18,907.00
Mukul Opo 40 years old	17 x 2 x 5 x 4 x 2 x	Tanget trees young & matured @ K1.00 Double mattress @ K74.00 each Pillow @ K3.00 each Domestic pigs @ K200.00 each Domestic cassowaries @ K200.00 each TOTAL	K 17.00 K 148.00 K 15.00 K 800.00 K 400.00 K 1,380.00	K20,287.00
Seine Mukul Opo 24 years old	42 x 50 x 6 x 4 x 5 x 8 x 1 x	Roofing iron (9 ft) @ K28.00 each Timbers (3x2x2.5) @ K2.50 each Soda plates @ K3.00 each Trays @ K5.00 each Rainbow blankets @ K20.00 each Floor mats (15 meters) K5.50 each 1 x table TOTAL	K 1,176.00 K 125.00 K 18.00 K 20.00 K 100.00 K 82.50 K 60.00 K 1,581.50	K21,868.50
Peter Kumb 29 years old	7 x 8 x 3 x 1 x 1 x	Guava trees young & matured @ K1.00 Forks @ K0.70 each Single mattress K20.00 each Overall trousers Domestic pig TOTAL	K 7.00 K 5.60 K 60.00 K 28.00 K 200.00 K 300.60	K22,169.10
Tambil Kelipnga 42 years old	10 x 98 x 2 x 9 x	Avocado trees young & matured @ K4.00 Pandanus palms young & matured @ K4.00 Trousers @ K14.00 each Domestic pigs @ K200.00 each TOTAL	K 40.00 K 294.00 K 28.00 K 1,800.00 K 2,162.00	K24,331.11
Kombo Kelipnga 59 years old	20 x 25 x 10 x 1 x 1 x 3 x	Tanget trees young & matured @ K1.00 each Yarr trees young & matured @ K4.00 Forks @ K0.70 each Tray Trousers Lap laps @ K5.00 each TOTAL	K 20.00 K 100.00 K 7.00 K 5.00 K 14.00 K 15.00 K 161.00	K24,492.10

Apal Dange 29 years old	8 x 25 x 2 x 2 x 3 x 1 x	Guava trees young & matured @ K1.00 each Yarr tree young & matured @ K4.00 each Rainbow blankets @ K20.00 each Trousers @ K14.00 each Domestic pigs @ K200.00 each Sauspan TOTAL	K 8.00 K 100.00 K 40.00 K 28.00 K 600.00 K 80.00 K 784.00	K25,276.10
Komni Dange 32 years old	50 x 12 x 2 x 2 x 2 x 2 x 1 x 3 x 2 x 1 x 6 x	Yarr trees young & matured @ K4.00 Forks @ K0.70 each Trays @ K5.00 each Knives @ K45.50 each Rainbow blankets @ K20.00 each Trousers @ K14.00 each Overall Domestic cassowaries @ K200.00 each Lap lap @ K5.00 each Coleman lamp Plates @ K2.50 each TOTAL	K 200.00 K 8.40 K 10.00 K 91.00 K 40.00 K 28.00 K 28.00 K 600.00 K 10.00 K 64.00 K 15.00 K 1,094.40	K26,370.50
James Galman Okun 45 years old	100 x 1 x 1 x 1 x 5 x 7 x 1 x 1 x 2 x 1 x 1 x 1 x 20 x	Cash savings from sales & savings Yarr trees young & matured @ K4.00 Kerosene stove Table Permanent house, 3 bedroom, roofing iron internal wall with plywood, 4 windows built off ground, flooring timber valued @ Double mattress @ K70.00 each Domestic pigs @ K200.00 each Radio 2 speakers Coleman lamp Handbags @ K30.00 each Thongs Watch (quartz) Cold shirt Floor mat (20 m) @ K5.00 per meter Coffee trees young & matured @ K10.00 TOTAL	K 1,500.00 K 400.00 K 70.00 K 60.00 K 4,000.00 K 350.00 K 1,400.00 K 202.00 K 64.00 K 60.00 K 3.00 K 52.00 K 30.00 K 100.00 K 200.00 K 8,491.00	K34,861.50

4. What is the measure of damages? An award of damages is dependant on how successful a plaintiff is able to prove it, as the onus is upon the plaintiff. In order to successfully prove it, the plaintiff must produce evidence that is credible and reliable. It must not be vague and contradictory: see Kolaip Panapi & Another -v- Sergeant Poko & Ors (2001) N2274.

5. In the present case, for general damages, the plaintiffs claim loss of houses, household items, domesticated animals, cash or economic trees and food crops. I have perused the affidavits of the plaintiffs (exhibits "P1" to "P23") and the description and value of the properties lost or destroyed in the raid by each plaintiff and note they are the same as the ones in the statement of claim as set out above. In my view, the particulars of loss set out in the statement of claim laid the foundation upon which the plaintiffs have led their evidence to establish their loss against the defendant. Thus, each plaintiff's claim is properly before the Court.

6. I also note there is no further corroborative evidence by way of receipts of payment produced to verify the amounts claimed for household items nor have they produced evidence from an independent valuer verifying the value of houses, domesticated animals, cash or economic trees and food crops lost or destroyed in the police raid. For it is trite that the plaintiff bears the onus of proof even though there is no evidence from the defendants disputing the value of the items: see Peter Wanis -v- Fred Sikiot & The State (1994) N1350.

7. However, the absence of receipts of payment for the household items and independent valuer for the houses, domesticated animals, cash or economic trees and food crops does not mean that the plaintiffs are entitled to nothing. They will be entitled to some damages but it maybe less. That means, the Court will do the best it can based on the evidence it has before it and estimate the losses of the plaintiffs. In the case of household items, this can be done by comparing the amounts claimed with the average purchase or retail prices of the same items in shops around town these days and also with past comparable awards by the Courts. In Anis Kewa -v- Desmond Kami & The State (2010) N3899, a police raid case, I used these two methods to assess damages. I said at pp 7 & 8:

"In terms of the value of destroyed items, whilst there are no receipts of payments to verify that the items cost K22,398.81 in total, I am nonetheless prepared to award this amount for two reasons. First, the amount is reasonable when each item is considered against the average purchase price of the same item at shops around town these days. For example, the video screen and the chair like the ones shown in the photographs (exhibits "P1", "P2", "P4" & "P5") would cost about K1,500.00 and K50.00 respectively.

Secondly, when I compare the value of each item in this case with past cases of John Tuink Salamon & Ors -v- George Wauglo & The State [1994] PNGLR 265; (1994) N1272; Peter Wanis -v- Fred Sikiot & The State (1994) N1350; Yange Langa & Ors -v- The State (1995) N1369 and Wama Kints & Ors -v- Senior Constable Pius Nukundi & The State (2001) N2113, the Court in those cases have made similar awards for similar items and so for purposes of consistency, I have decided to apply similar value for each item in this case. This comes up to K22,398.81. For these reasons, I award K22,398.81 as general damages."

8. I adopt these methods to assess damages for loss of household items in this case. On the evidence, I am satisfied the value of the household items are reasonable as they are within the retail price range in the shops and also those awarded in past case. As for the loss of houses, again, on the evidence, I am satisfied on the value of the houses is reasonable and as for the loss of domesticated animals, cash or economic trees and food crops, on the evidence, I am also satisfied with the valuation. They are reasonable.

9. There is one more matter I wish to raise and that is, the plaintiff Mr Okun also claimed loss of cash of K1,500.00. He gave evidence that he is a village councilor and the money was his savings from sales of his cash crops. He kept it in his house to buy food for meetings and other necessities during emergencies, including hiring of motor vehicles to sell coffee in Mt Hagen. I accept his evidence and I am satisfied he has established the source and purpose of the money. I find he lost K1,500.00.

10. When assessing damages, the Courts have also allowed for contingencies, eg. possible over valuation of the losses or possible double claims. The plaintiffs' counsel submits there is evidence from the plaintiffs that their list of properties and valuation were reviewed and revised by their lawyers. As for the economic trees such as coffee, guava, casuarinas trees, pandanus, avocado and bamboo, these were re-valued based on valuation from the Department of Agriculture and Livestock. Based on that, the list of properties and valuation is a credible estimate of the loss and the Court should accept the list and valuation and allow, perhaps, 5% for contingency.

11. It is noted counsel for the defendant suggested in cross-examination of Mr Okun that his claim and the claims for the other 22 plaintiffs are a duplication of claims in WS No. 100 of 1996 proceeding but has not offered any evidence to establish this assertion. I am satisfied based on the decision of the National Court in WS No. 100 of 1996 proceeding (supra) that the plaintiffs in this case were not awarded any damages in WS No. 100 of 1996 proceeding (supra). Therefore, I agree and accept the plaintiffs counsel's submission based on the reason he has advanced and will allow 5% for contingencies.

12. Finally, I take into account inflation as was done in past cases of Andak Kupil -v- The State [1983] PNGLR 350, Lin Wan Xin -v- Wau Yanhang (2001) N2160, Shelly Kupo -v- MVIL (2002) N2282, Roslyne Cecil Kusa -v- MVIL (2003) N2328 and Andrew Moka -v- MVIL (2004) SC 729. These were personal injury cases but I consider the principle is the same and applicable in police raid cases. I say this because it is common knowledge, cost of goods and services have gone up and in my view, it is only fair that an award of damages in a case such as this where properties have been destroyed or lost in 1995, some 16 years ago, must include inflation to compensate the plaintiffs at an equivalent value in present day. Plaintiffs' counsel submitted 30% increase from the total award of general damages for each plaintiff to cover for inflation would be appropriate. I accept this submission.

13. The plaintiffs also claimed exemplary damages but in submissions, their counsel abandoned it on the basis that no policemen have been identified and named in the proceeding. Therefore, I make no award for exemplary damages. See also Aimon Aure & or -v- Captain Peter Boko & The State [1996] PNGLR 85 and Abel Tomba -v- The State (1997) SC 518.

14. As for interest, I am prepared to accept the plaintiff's counsel's submission of 8% from the date of issue of writ to the date of judgment and will calculate interest based on that rate for each plaintiff.

16. Total number of days from the date of issue of writ of 22nd December 1998 to judgment date of 26th September 2011 is 4,810 days. K10,487.00 x 8% ÷ 365 days = K2.30 per day x 4,810 days = K11,063.00. Total awarded: K10,487.00 + K11,063.00 = K21,550.00.

17. I apply this method of calculation for the remaining 22 plaintiffs. The calculation of each claim is set out in the table below.

NAME	INITIAL GENERAL DAMAGES	LESS CONTIN- GENCIES 5%	GENERAL DAMAGES	PLUS INFLATION 30%	INITIAL GENERAL DAMAGES	DAILY 8% INTEREST	INTERST SAY FOR 4810 DAYS	FINAL DAMAGES
LAPUN AINE	K 5,308.00	K265.00	K 5,043.00	K1,513.00	K6,556.00	K1.44	K6,926.00	K12,906.00
MOND TAMBIL	K 260.50	K 13.00	K 247.00	K 74.00	K 321.00	K0.07	K 337.00	K 658.00
SEINE OKUN	K 120.00	K 6.00	K 114.00	K 34.00	K 148.00	K0.03	K 144.00	K 292.00
PENGEM ALU	K 2,031.00	K 102.00	K 1,930.00	K 579.00	K2,509.00	K0.55	K2,646.00	K 5,155.00
JUSTIN WAIYAN ALU	K 220.00	K 11.00	K 209.00	K 63.00	K 272.00	K0.06	K 289.00	K 561.00
KOLIP NGUNTS	K 154.00	K 8.00	K 147.00	K 44.00	K 191.00	K0.04	K 192.00	K 383.00
KOMBUL KUN WALEP	K 3,214.00	K 161.00	K 3,053.00	K 916.00	K3,969.00	K0.87	K 4,185.00	K 8,154.00
PETER WAPI	K 1,544.00	K 77.00	K 1,467.00	K 440.00	K1,907.00	K0.42	K2,020.00	K 3,927.00
DAL MUND	K 619.60	K 31.00	K 589.00	K 177.00	K 766.00	K0.17	K 818.00	K 1,584.00
PAUL WANDIL	K 2,428.40	K 121.00	K 2,307.00	K 692.00	K2,999.00	K0.66	K3,175.00	K 6,174.00
NOLIYE AMUL	K 2,171.00	K 109.00	K 2,063.00	K 619.00	K2,682.00	K0.59	K2,838.00	K 5.520.00
JAMES BONONG	K 293.00	K 15.00	K 278.00	K 84.00	K 362.00	K0.08	K 385.00	K 747.00
KELI MASOL	K 543.00	K 27.00	K 516.00	K 155.00	K 671.00	K0.15	K 722.00	K 1,393.00
MUKUL OPO	K 1,380.00	K 69.00	K 1,331.00	K 393.00	K1,704.00	K0.37	K 1,780.00	K 3,484.00
PETER KUMB	K 300.60	K 15.00	K 285.00	K 86.00	K 371.00	K0.08	K 385.00	K 756.00
SEINE M. OPO	K 1,581.50	K 79.00	K 1,502.00	K 451.00	K1,953.00	K0.43	K 2,068.00	K 4,021.00
TAMBIL KELIPNGA	K 2,162.00	K 168.00	K 2,504.00	K 616.00	K2,670.00	K0.59	K 2,838.00	K 5,508.00
KOMBO KELIPINGA	K 161.00	K 8.00	K 153.00	K 46.00	K 199.00	K0.04	K 192.00	K 391.00
APAL DANGE	K 784.00	K 39.00	K 745.00	K 244.00	K 969.00	K0.21	K 1,010.00	K 1,979.00
KOMNI DANGE	K 1,094.40	K 55.00	K 1,040.00	K 312.00	K1,352.00	K0.30	K 1,443.00	K 2,795.00
JAMES G. OKUN	K 8,491.00	K 424.00	K 8,067.00	K2,420.00	K10,487.00	K2.30	K11,063.00	K21,550.00
TAKIP AINE	K 716.00	K 36.00	K 680.00	K 204.00	K 884.00	K0.19	K 914.00	K 1,798.00
TOTAL	K35,578.10	K1,840.00	K33,820.00	K10,162.00	K43,942.00	K9.64	K46,370.00	K89,736.00

Order
18. There shall be judgment in favour of the plaintiffs in the total sum of K89,736.00 inclusive of 8% interest and the defendant shall pay the plaintiffs' cost of the proceeding to be taxed if not agreed. Time shall be abridged.

Judgment and orders accordingly.
____________________________________
Kopunye Lawyers: Lawyers for Plaintiffs
Acting Solicitor-General: Lawyers for Defendant

National Court of Papua New Guinea

Aine v State [2011] PGNC 116; N4389 (26 September 2011)