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Wabata v Ohue [2018] PGNC 82; N7157 (16 March 2018)

N7157

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 114 OF 2014

JOHNNIE WABATA
First Plaintiff

TABI OPETI
Second Plaintiff

V

JUSTUS OHUE
Defendant

Waigani: Cannings J
2016: 13, 21 October,
2018: 16 March

DAMAGES – assessment of damages following entry of default judgment – assault – breaches of human rights – confiscation of motor vehicle.

The plaintiffs were unlawfully assaulted and had their human rights breached by two men, one of whom was the defendant, purporting to exercise the powers of police reservists. The defendant and his companion also confiscated a motor vehicle, owned by one of the plaintiffs and driven by the other plaintiff, which the plaintiffs used as an income-generating taxi. The vehicle was not returned to the plaintiffs. The plaintiffs commenced proceedings against the defendant only, as his companion could not be located or identified, seeking damages. The defendant failed to defend the matter and default judgment was entered against him. A trial on assessment of damages was conducted. The plaintiffs sought damages in eight categories, totalling K84,980.00. The defendant presented no evidence but was legally represented at the trial, and argued that the damages sought were excessive and that a reasonable amount to award would be a total of K33,005.00.

Held:

(1) When assessing damages after entry of default judgment, the judge should make a cursory inquiry so as to be satisfied that the facts and cause of action are pleaded with sufficient clarity. Here the facts and causes of action (the torts of assault and battery, and breaches of human rights) are clear. Liability was not revisited.

(2) There was little corroboration to support the plaintiffs’ evidence and no good case was made out for an award of aggravated (exemplary) damages. Damages were assessed in the manner contended for by the defendant: a total of K33,005.00. In addition, interest of K7,815.58 was awarded, making the total judgment sum K40,820.58.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Alex Latham v Henry Peni (1990) N1463
James Koimo v The State [1995] PNGLR 535
William Mel v Coleman Pakalia (2005) SC790

ASSESSMENT OF DAMAGES

This was an assessment of damages for assault and battery and breaches of human rights.

Counsel

M Pokia, for the plaintiffs
E Wurr, for the defendant

16^th March, 2018

1. CANNINGS J: This is an assessment of damages for assault and breaches of human rights committed by the defendant, Justus Ohue, against the plaintiffs, Johnnie Wabata and Tabi Opeti, in and following an incident outside the Penthouse nightclub, Gordons, National Capital District in the early hours of Thursday 24 January 2013. Liability was established by default judgment.
INCIDENT

2. In the statement of claim it was alleged that Johnnie Wabata was the driver of a taxi owned by Tabi Opeti. He was on duty, waiting outside the nightclub for passengers, when he was confronted and assaulted and his human rights were breached by two men, one of whom was the defendant, purporting to exercise the powers of police reservists. The defendant and his companion commandeered the taxi and drove it, with Johnnie Wabata inside, to the residence of Tabi Opeti at Korobosea, where Tabi Opeti was assaulted and Johnnie Wabata was again assaulted by the defendant and his companion. The defendant and his companion then confiscated the taxi and told the plaintiffs they would have to provide K2,000.00 to them as a penalty for using an unregistered taxi. The vehicle was not returned to the plaintiffs.

PROCEDURE

3. The plaintiffs commenced proceedings against the defendant only, as his companion could not be located or identified, seeking damages. The defendant failed to defend the matter and on 1 April 2015 default judgment was ordered against him.

4. The effect of the default judgment is that the facts and causes 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 futile exercise. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity (William Mel v Coleman Pakalia (2005) SC790). I have made that inquiry and am satisfied that the facts and causes of action are clear. The plaintiffs have established causes of action in:

• the torts of assault and battery; and
• breach of human rights, in particular: freedom from inhuman treatment (Constitution, Section 36(1)); right to full protection of the law (Constitution, Section 37(1)); and right of protection against unjust deprivation of property (Constitution, Section 53(1)).
  

EVIDENCE AND SUBMISSIONS

5. Each plaintiff gave evidence by affidavit and was represented by Mr Pokia of Mirupasi Lawyers. The defendant gave no evidence but was represented by Ms Wurr of the Office of Public Solicitor.

6. The plaintiffs seek damages in eight categories, totalling K84,980.00. Ms Wurr submitted that the damages sought were excessive and that a reasonable amount to award would be a total of K33,005.00.

DETERMINATION

7. Set out in the following table are the eight categories of damages sought by the plaintiffs and the amounts that the defendant contends are appropriate. The final column contains the Court’s award.

8. It will be observed that I have assessed damages in the way contended for by the defendant.

(a) LOSS OF VEHICLE

9. The second plaintiff has given evidence that he purchased the vehicle, a Toyota Camry, second-hand, from Ela Motors in August 2012 – five months before it was confiscated. He deposes that he paid K19,000.00 for it. The evidence in support of the claim is scanty. He has provided no purchase documents. He has only provided a bank statement showing that that amount was paid to Ela Motors from his bank account. I uphold Ms Wurr’s submission that the claim should be discounted by 50%, and award K10,500.00.

(b) LOSS OF INCOME

10. Mr Pokia submitted that running the taxi would have earned the second plaintiff K150.00 per day. On the assumption that the taxi would be off the road for 112 days (comprising 52 Saturdays, as the second plaintiff does not allow it to be used on a Saturday, and 60 other days to account for exigencies) Mr Pokia submitted that it would have been on the road, generating income, for 253 days. The total amount sought was K150.00 x 253 = K37,950.00. The problem with the claim, as Ms Wurr pointed out, is that that there is no documentary evidence to support it. I uphold Ms Wurr’s submission that the claim should be discounted by 50%, and award K18,975.00.

(c) HARDSHIP, MENTAL ANGUISH AND SUFFERING

11. The sum of K5,000.00 is sought. Again, there is no corroboration provided. Medical evidence was required. I uphold Ms Wurr’s submission that the claim should be discounted by 50%, and award K2,500.00.

(d) ASSAULT ON FIRST PLAINTIFF

12. A modest claim is made, which Ms Wurr has conceded. I award K400.00.

(e) SWEARING AT FIRST PLAINTIFF

13. A modest claim is made, which Ms Wurr has conceded. I award K200.00.

(f) ASSAULT ON SECOND PLAINTIFF

14. A modest claim is made, which Ms Wurr has conceded. I award K200.00.

(g) CASH OBTAINED BY DEFENDANT

15. A modest claim is made, which Ms Wurr has conceded. I award K230.00.

(h) AGGRAVATED DAMAGES

16. Better known as exemplary damages, aggravated damages are a special category of damages which are awarded for the purpose, not of compensating a plaintiff, but of punishing a defendant – the wrongdoer – for a particularly egregious or wilfully wrongful act, as distinct from a less severe form of wrongful conduct. It provides a deterrent against similar conduct by others (Alex Latham v Henry Peni (1990) N1463; James Koimo v The State [1995] PNGLR 535; Abel Tomba v The State (1997) SC518). I uphold Ms Wurr’s submission that the claim for exemplary damages has been inadequately pleaded and nothing is awarded.

TOTAL

17. The total award of damages is K33,005.00.

INTEREST

18. I exercise the discretion of the Court under Section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 to award interest at the rate of 8 per cent per annum on the total amount of damages. Interest will be calculated in respect of the period from the date of the order for default judgment (1 April 2015) to the date of this judgment, a period of 2.96 years, by applying the formula D x I x N = A, where: D is the amount of damages, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest: K33,005.00 x 0.08 x 2.96 = K7,815.58.

COSTS

19. As the Court upheld the defendant’s submission on the quantum of damages, but still awarded a substantial amount of damages, it is appropriate that, subject to any specific costs order made in the course of the proceedings, the parties bear their own costs.

ORDER

(1) The defendant is liable to pay to the plaintiffs total damages of K33,005.00 plus interest of K7,815.58, being a total judgment sum of K40,820.58.

(2) Subject to any specific costs orders made in the course of the proceedings, the parties shall bear their own costs of the proceedings.

(3) The proceedings are thereby determined and the file is closed.

Judgment accordingly.
_____________________________________________________________
Mirupasi Lawyers: Lawyers for the Plaintiffs
Public Solicitor: Lawyer for the Defendant