N5805
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 1851 OF 2001

HERMAN MANDAI
Plaintiff

V

EMMANUEL POKSI POPOSIA
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2014: 15, 27 October

DAMAGES – negligence – assessment of damages after entry of default judgment – loss of motor vehicle while in police custody – whether question of liability ought to be revisited – determination of value of lost motor vehicle.

The plaintiff claimed that his motor vehicle was confiscated by the first defendant, a member of the Police Force, who kept it in a police yard for three days, after which time it was, due to the first defendant's negligence, stolen or lost, and never recovered. The plaintiff sued the first defendant and his employer, the State, claiming damages in negligence for the lost vehicle (K60,000.00) and for loss of its use for two weeks (K1,000.00). The defendants failed to file a defence and default judgment on liability was entered against them. This was a trial on assessment of damages. The defendants argued that the issue of liability should be revisited due to defects in the pleadings and the State should be found not liable; but in the event that the State remains liable, nothing should be awarded due to lack of evidence to support the claims.

Held:

(1)	The effect of the default judgment was that the facts and cause of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make an assessment of damages a futile exercise (William Mel v Coleman Pakalia (2005) SC790). Here, the facts pleaded were clear and, although the case was imprecisely pleaded, the statement of claim sufficiently disclosed a cause of action in negligence, so assessment of damages was not a futile exercise. The issue of liability was not reconsidered.

(2)	As to the amount claimed for loss of the vehicle, there was a lack of evidence as to its value. There was no receipt evidencing the alleged purchase price of K60,000.00 and no evidence as to the age or condition of the vehicle. However, as the defendants adduced no evidence to counter the claimed value, the Court did the best it could on the limited evidence available and deemed the value to be 25% of the amount claimed, ie K15,000.00.

(3)	Nothing was awarded for the claimed loss of the use of the vehicle, as there was little evidence to sustain it. The total award of damages was K15,000.00.

(4)	In addition, interest on the total damages was awarded, calculated at the rate of 8% per annum from the date on which the cause of action accrued, 12 November 2001, to the date of judgment (a period of 12.95 years), a sum of K15,540.00, resulting in a total judgment sum of K30,540.00.

 Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Jonathan Mangope Paraia v The State (1995) N1343
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Otto Benal Magiten v Bilding Tabai (2008) N3470
Peter Wanis v Fred Sikiot and The State (1995) N1350
William Mel v Coleman Pakalia (2005) SC790
Yange Lagan v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages for negligence.

Counsel

O Avorosi, for the plaintiff
N Balen, for the defendants

27th October, 2014

1. CANNINGS J: This is an assessment of damages for negligence, following entry of default judgment. The plaintiff, Herman Mandai, claims that on 9 November 2001 the first defendant, Emmanuel Poposia, who was then a member of the Police Force, seized his motor vehicle (on suspicion that it was stolen) and placed it in the yard of Boroko Police Station. The plaintiff says that by 12 November 2001 his vehicle was either lost or stolen. It went missing and has never been recovered. In December 2001 he commenced proceedings against Mr Poposia and his employer, the State, seeking damages.

2. The defendants failed to file a defence and default judgment on liability was on 18 September 2002 entered against them. That judgment was later set aside and the whole proceedings dismissed. However, on 27 February 2013 the Supreme Court allowed an appeal by the plaintiff against dismissal of the proceedings and remitted the matter to the National Court for an assessment of damages on the original statement of claim. The plaintiff seeks two categories of relief:

•	damages of K60,000.00 representing the value of the vehicle;

•	damages of K1,000.00 in respect of loss of use of the vehicle.

3. The defendants argue that the issue of liability should be revisited due to defects in the pleadings and the State should be found not liable; but in the event that the State remains liable, nothing should be awarded due to lack of evidence to support the claims. The first issue is whether to revisit the issue of liability. If that issue is decided against the defendants, the court will assess the amount of damages due to the plaintiff.

1	SHOULD LIABILITY BE REVISITED?

4. The effect of the default judgment is that the facts and cause of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make an assessment of damages a futile exercise (William Mel v Coleman Pakalia (2005) SC790).

5. Ms Balen, for the State, submitted that the Court should revisit the issue of liability and find that the State is not liable, as the cause of action was not pleaded with sufficient clarity: the pleading is so vague the defendants have been left guessing what the cause of action is, and it was not pleaded that the first defendant was acting within the scope of his police duties when he allegedly seized the vehicle.

9. I agree that the statement of claim is imprecisely drafted. I note that an amended statement of claim was filed by the plaintiff's present lawyers in May 2010, in accordance with an order from the National Court. The amended statement clarifies that the cause of action is negligence and is clearly pleaded. However, when the Supreme Court upheld the plaintiff's appeal it ordered that there be an assessment of damages on the original statement of claim, so the amended statement of claim is irrelevant. Despite its deficiencies it can be inferred from the original statement of claim that the pleading is that:

•	the first defendant, a police officer, owed a duty of care to the plaintiff, the owner of a vehicle which the first defendant seized in the course of his duty as a police officer;

•	the first defendant breached his duty of care by failing to take adequate steps to secure the vehicle;

•	the breach of duty caused damage to the plaintiff as he entirely lost the use of the vehicle and lost its capital value;

•	therefore the first defendant committed the tort of negligence and is liable in damages to the plaintiff; and furthermore

•	because the first defendant committed negligence in the course of his duties as a Police officer, his employer, the State, is vicariously liable to the plaintiff.

10. I consider that the original statement of claim adequately pleads a cause of action in negligence and does not make assessment of damages a futile exercise (Otto Benal Magiten v Bilding Tabai (2008) N3470). The default judgment will not be set aside. I will now assess damages.

2	ASSESSMENT OF DAMAGES

(a)	Value of vehicle

11. The plaintiff has given evidence that he purchased the vehicle second-hand from Bui Wetao in September 2000 (14 months before the vehicle was seized) for the sum of K60,000.00. It was a Mazda 323 station wagon. He has adduced the registration and compulsory third party insurance documents, which show that on the date the vehicle was seized, he did own it. However, he has not provided any other evidence of the purchase price of the vehicle such as a receipt or a registration certificate showing transfer of ownership. He has given no evidence of the age or condition of the vehicle. The person he identified as the seller of the vehicle has not given evidence. There are some general principles for assessing damages that work against the plaintiff in this situation:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. (Yooken Paklin v The State (2001) N2212).

•	Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335, Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).

•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim (Peter Wanis v Fred Sikiot and The State (1995) N1350).

•	The same principles apply after default or summary judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte (Yange Lagan v The State (1995) N1369).

12. Ms Balen relies on those sorts of principles to argue that the plaintiff should be awarded nothing. I consider, however, that there is another principle that can be invoked, which will result in a more just outcome:

•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court will do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).

13. I do not think it would be fair to award the plaintiff nothing. It is almost 13 years since his vehicle was seized. No evidence has been presented by the defendants, and it has not been suggested, that the conduct he complains of did not happen. He filed the writ of summons on 31 December 2001 and the case has wound its way through the National Court and up to the Supreme Court and back to the National Court for more than 12 years. In all that time no one has come forward to say that his vehicle was not worth K60,000.00. So I am not going to award the plaintiff nothing. What I will do is discount the claimed value of the vehicle. I will award the plaintiff 25% of the claimed value of the vehicle: the amount awarded is K15,000.00.

(b)	Loss of use of the vehicle

14. The plaintiff seeks K1,000.00 for the loss of use of the vehicle for a period of two weeks. This claim is very vague and there is no evidence to support it, so nothing is awarded.

Summary of assessment

15. The following amounts are awarded:

(a)	value of vehicle, K15,000.00 +
(b)	zero for loss of use of vehicle.

Total amount of damages = K15,000.00.

INTEREST

16. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest will be calculated in respect of the period from the date on which the cause of action arose, 12 November 2001, to the date of this judgment, a period of 12.95 years, by applying the formula D x I x N = A, where D is the amount of damages, I is the rate of interest, N is the appropriate period and A is the amount of interest. Thus K15,000.00 x 0.08 x 12.95 = K15,540.00.

COSTS

17. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. I apply that rule of thumb here. The plaintiff has repelled the argument that he be awarded nothing. He is the successful party and will be awarded costs.

ORDER

18. The Court orders that:

(1)	the defendants shall pay to the plaintiff damages of K15,000.00 plus interest of K15,540.00, being a total judgment sum of K30,540.00; and

(2)	the defendants shall pay the plaintiff's costs of the proceedings on a party-party basis which shall, if not agreed, be taxed.

Judgment accordingly.
_______________________________________________________________
Greg Manda Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants