N8137
   
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 514 OF 2014

BETWEEN:
MARIA SEETO
Plaintiff

AND:
NGIP AGMARK LIMITED
Defendant

Kokopo:  Dingake J
2019:  22nd November

ASSESSMENT OF DAMAGES – plaintiff claims damages for trespass, mesne profits, damages for denial or obstruction of road access, value of converted fencing materials, general damages and or punitive damages for nuisance and escape of dangerous and harmful water waste – trespass and mesne profits are conceptually different – separate assessment of damages – damages assessed for trespass, mesne profit and general damages with interest and costs in favour of plaintiff

Cases Cited:

Hodson v The State (1985 PNGLR 303 N524
Nola v Alipet (2019) N 7939 PGNC 209
Nambawan Super Ltd v Petra Management Ltd (2017) N6748 PGNC 108
Peter Aigilo v The State (2001) N2102
Peter Na-al Michael Debege (2000) N1958 PGNC 6
Wamaboamg v Palme (2012) N 4715)
Waisam v Auskoa Enterprise Limited, Justine Seo and Pacific Trade International Limited [2019] N7727

Overseas Case Cited: 

Beaumont v Greathead 1846 2CB 494; 
Plenty v Dillon (1991) 171 CLR 635, 655

Other References

John Mayne and Harvey McGregor, Mayne and McGregor on Damages (Sweet and Maxwell, Limited, the ed, 1961.

Counsel: 

Mr. Sialis Tedor, for the Plaintiff
Mr. R. Asa, for the Defendant

JUDGMENT

22nd November, 2019

1.	DINGAKE J:   In this matter the Plaintiff claims against the Defendant damages, under several heads, namely trespass, mesne profits, damages for denial or obstruction of road access, value of converted fencing materials, general damages and or punitive damages for nuisance and escape of dangerous and harmful water waste.

2.	The total monetary claim in the pleadings is slightly in excess of K4, 000,000.00 (Four Million Kina). However, in his submissions filed with the Court on the 11th of October, 2019, the Plaintiff’s total claim comes to about K652,695.04.

3.	There are many other aspects in which the pleadings and the submissions are not aligned.

4.	The proceedings are said to be brought under Order 4, Rule 4, Rule 2 and 3 of the National Court Rules, Section 155(4) of the Constitution and under the common law principles on the tort of trespass, nuisance, denial of access and escape of dangerous and harmful chemical as applicable to Papua New Guinea from time to time.

5.	It is trite learning that the Plaintiff carries the burden to prove her pleaded case on a balance of probabilities. 

6.	In her pleadings the Plaintiff alleges that since 2004, the Defendant or its servants or agents encroached into her land and conducted business in those areas of her land it encroached into. The Plaintiff avers that the Defendant notwithstanding demand or request refused to rectify the situation and in the process denied her the use and enjoyment of her land.
7.	The Plaintiff claims mesne profits and or compensation for the unlawful use and occupation of her land for six (6) years dating back to July, 2008, in the amount of K1,800,000.00.

8.	The Plaintiff’s claim for assault is founded on allegations that the Defendant and its agents have been inflicting on the Plaintiff and some members of her family all forms of assaults and insults, resulting in psychological, emotional and mental pain on the Plaintiff and her family over a long period of time.

9.	The Plaintiff also pleads that in the years prior to and including the 28th of July, 2008, up to the time these proceedings were commenced, the Defendant, its servants and agents continuously released water and other chemical and harmful wastes into the Plaintiff’s front yard, thereby causing substantial inconvenience and damage to the property. The Plaintiff alleges that she suffered loss and damage in consequence of the above.

10.	The Plaintiff pleads further that since 2004, the Defendant put up a perimeter fence, thereby obstructing and interfering with the plaintiff’s entry into her land, and that in consequence thereof the plaintiff suffered loss and damages at the value of K10,000.00 per month commencing on the 28th of July 2008, up to the date of trial. The total claimed under this head is K1,060,000.00.

11.	The Plaintiff pleads that in 2014, the Defendant, its agents, neglected, failed and refused to return to the plaintiff, 6 metres of steel wire mesh and thirty (30), 4 inches x 12 feet aluminium post owned by the Plaintiff. The loss and damages claimed under this head comes to K9,999.00.

12.	The Plaintiff also claims interest pursuant to the Judicial Proceedings(Interest on Debts and Damages) Act.

13.	The above is a summary of the plaintiff’s case as pleaded.

14.	 It is trite learning that the pleadings drive the evidence or determine the evidence to be led. 

15.	I turn to consider the evidence in light of the pleadings. 

16.	The Plaintiff led evidence by way of affidavit material and the Defendant led viva voce evidence.

17.	The assessment of the evidence of the Plaintiff would be undertaken in the context that the Defendant failed to respond to notice to admit facts served upon it in terms of Order 9, Rule 29(1) of the National Court Rules. 

18.	Order 9 Rule 29(1) and (2) of the National Court Rules provides that:
“(1) A party to proceedings may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the facts specified in the notice. 

(2) If, as to any fact specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice.”

19.	The evidence of the Plaintiff, in summary, under the heads as claimed is as follows:

Trespass

20.	The pleadings under this head tend to be conflated with mesne profits, but on the whole it is clear that the Plaintiff is also claiming for trespass standing alone.

21.	Under this head the Defendant concedes liability. The question that falls for determination is the amount of compensation that must be awarded as damages.

22.	The proper approach is to treat trespass separately from mesne profits, as the two are not the same. Encroachment simply understood refers to entry into one’s land without permission. Mesne profits on the other hand relates to occupation of another’s land and benefiting therefrom. Trespass and mesne profits, conceptually being different, attract separate assessment of damages, if made out. Waisam v Auskoa Enterprise Limited, Justine Seo and Pacific Trade International Limited [2019] N7727.

23.	Essentially, excluding the unenforceable part of the Plaintiff’s claim and having regard to the Frauds and Limitation Act, Section 16, thereof, the period of trespass comes to about six (6) years, given the common cause fact that the encroachment was rectified in 2014.

24.	On the first day of trial the Court physically visited the site and was shown the area of encroachment. I have also examined the Survey Plan No. A3/2885-01, in relation to the evidence of the Plaintiff and that of Paula N Cholai for the Defendant. Paula N Cholai is a property Valuer from Gazelle Realty Limited.

25.	Having considered the evidence on trespass in its totality, I am inclined to agree with Paul Cholai that the land area trespassed was small relative to the total land area of the plaintiff’s land and that it is difficult to place any monetary value on the same. However, it would be unjust to ignore the fact that the tort of trespass took place and endured for six years.

26.	It is my considered opinion that an award of general damages for trespass also fulfils vindicatory purposes.

27.	In Plenty v Dillon (1991) 171 CLR 635, 655 the High Court of Australia, characterized an ward of general damages, for what it described as a “serious” trespass to land, as fulfilling vindicatory purposes: 
“True it is that the entry itself caused no damage to the Appellant’s land. But the purpose of an action for trespass to land is not merely to compensate the Plaintiff for damage to the land. That action also serves the purpose of vindicating the Plaintiff’s right to the exclusive use and occupation of his or her land …”

28.	The Plaintiff is entitled to have his right to property vindicated, by an appropriate award of damages, if the owner of property has a right not to be unlawfully invaded.

29.	In my considered opinion, to do justice in this case, based on its circumstances, I have sought guidance from the case of Nambawan Super Ltd v Petra Management Ltd (2017) N6748 PGNC 108, were the Court awarded K20,000 for the act of trespass alone. 

30.	Taking the above case as a guide, having regard to the particular circumstances of this case, the obvious attendant inconvenience as particularized in the pleadings, and not denied, I consider an award of K40,000 reasonable to compensate for the act of trespass alone. 

31.	Trespassing into someone’s property for six years and denying her usage of that part of land for a period of six years is unacceptable.

Mesne Profits

32.	I turn now to consider mesne profits. The correct way to assess damages for mesne profits is the market value of the property occupied or used for the period of the wrongful occupation. This essentially means that the Court may consider the commercial rental value of the land if it were to be rented at the relevant time.

33.	For loss of rent I consider that the Plaintiff’s claim has been made out. According to the evidence placed before the Court the encroached area came to about 0.038 hectares. It is not in dispute that the occupation continued for 6 years, at the very least, reckoned from the 28th of July 2008 to July, 2014.

34.	The Plaintiff’s evidence on the Commercial rental market value of the land encroached is not contested, as found in the Valuation Report by a valuer of the Department of Lands at Kokopo, document 37, filed of record.

35.	Based on the above valuation, I accept the calculations submitted by the Plaintiff that the loss of rental amounts to K1,648.04 calculated as follows: (13,000 (per annum) ÷ 1.84 hectares of Portion 35 × 0.038 hectares × 6 (number of years encroached) = K1,648.04).

36.	I also accept as proven that the Plaintiff paid the amount of K697.00 for the valuation and if added to the mesne profits the overall claim comes to K2,345.04.

37.	The Plaintiff also claims mesne profits of K350,000 based on the use of land to do business in the encroached land. The only piece of information that the Plaintiff says is the evidence supporting the claim is the assertion at paragraph 32 of the affidavit of Maria Seeto (Doc. 41) to the effect that the Defendant carried business in the encroached land; that the Defendant had put up two buildings; storage of two large containers to accommodate its workmen and storage of equipment and materials.

38.	Paragraph 32 of Maria Seeto avers that the Defendant “made money and profited out of its unlawful use and occupation of my land”. I find that the Plaintiff, with respect to this head, makes assertions unsupported by evidence. I conclude therefore that this claim has not been made out.

Obstruction of Access to the Plaintiff’s property

39.	The next claim is for obstruction of access to the plaintiff’s property caused by the Defendant when it shut down the only entry gate.  Under this head whilst the fact of obstruction is established and not disputed, the damages claimed have not been proven. However, I consider that the fact that damages have not been proven does not mean that the wrong did not take place. It did take place. In my mind it must attract, at the very least nominal damages, if justice is to be seen to be done.

40.	Nominal damages are usually a token sum, where a tort is actionable perse, and where the Plaintiff is unable to prove any injury, loss or damage. It simply recognises that a wrong took place and such a wrong should not go without a remedy (Beaumont v Greathead 1846 2CB 494; John Mayne and Harvey McGregor, Mayne and McGregor on Damages (Sweet and Maxwell, Limited, the ed, 1961. Under this head I consider an award of K10,000.00 to be appropriate and adequate.

41.	I turn now to the next claim, being, alleged damage suffered from release of harmful and dangerous chemicals and contaminated water into the plaintiff’s property. Under this head the Plaintiff claims general and punitive damages. General damages, refer to all injuries which are not capable of precise calculation. As for punitive damages, (which have not been proven under this head) its purpose is to punish  for conduct showing a conscious and deliberate disregard of the Plaintiff’s rights that warrants punishment by the Court, in order to deter the Defendant from committing like conduct again.

42.	On the evidence, I am satisfied that the defendant continuously released water and other chemical wastes into the front yard of the Plaintiff’s home between July, 2008 up to the period these proceedings were commenced.

43.	Counsel for the Plaintiff did not assist the Court with any authority that would enable the Court to come to any rational conclusion as to the amount of loss and damages sustained.

44.	In the circumstances of this case, given the substantial inconvenience to the Plaintiff that occurred, it would be unjust not to award any relief. The inconvenience the Plaintiff suffered should attract some damages given that the inconvenience endured was for a long time. I consider general damages in the amount of K20,000 to be fair and just. I will therefore award K20,000 as general damages. I do not find that punitive damages are warranted.

Assault, emotional and mental pain, frustration and humiliation

45.	The next head of claim is for assault, emotional and mental pain, frustration and humiliation inflicted on the Plaintiff and the family by the Defendant, its servants and agents. Under this head the Court reminds itself that some of the alleged assaults were directed at other people, which she can’t claim for, save for those concerning herself. 

46.	In this case the Defendant is a company. It is being alleged that the acts of assault, and humiliation, emotional and psychological harm were caused by the Defendant’s workers, servants and or agents. To succeed, therefore, the Plaintiff must establish, on a balance of probabilities that the Defendant’s workers, servants or agents carried out the assaults, emotional abuse and humiliation in the course of their employment and or with authority of the Defendant. This, the Plaintiff failed to do.  I conclude therefore that this claim ought to fail.

47.	It is trite law that in order for a company to be vicariously liable, the acts complained of should have been done during the course and scope of the employees, agents or servants’ work, or authorized by the principal, the Defendant.

48.	In my considered opinion, it is not enough that certain unlawful conduct should have occurred. Proper pleadings and evidence must be marshalled to sustain a claim based on vicarious liability. In this case both the pleadings and the evidence fall short of establishing vicarious liability under this head (Nola v Alipet (2019) N 7939).

49.	In my considered opinion, in a claim based on vicarious liability, it is prudent to set out clearly and expressly the facts giving rise to vicarious liability in the pleadings and to bring evidence at the trial to prove the facts as alleged.

50.	In this entire claim, where the Plaintiff alleges or pleads vicarious liability, she has failed to set out the facts giving rise to the claim; and or to plead that the actions complained of were committed by the servants or agents in the course of their employment or with authority of the principal, the Defendant.

51.	The last claim relates to conversion of fencing materials. The plaintiff pleads that the defendant converted some of her fencing material as particularized in her pleadings. She says the total value of the materials is K10,000. She attaches no documentary proof or any evidence whatsoever that supports that K10,000 is indeed the value of the materials taken and not returned. I conclude therefore that this claim is not proven.

52.	In the result, the Court enters judgment in favour of the Plaintiff in the following terms:

(a)	Trespass				=	K40,000.00
(b)	Mesne profits			=	K2,345.04
(c)	General Damages in total	=	K30,000.00
(d)	Interest on the aforesaid sums at the rate of 8% per annum from the date of judgment, pursuant to the Judicial Proceedings Act.
(e)	Costs of the suit to be paid by the defendant to the plaintiff.
___________________________________________________________
Sialis Tedor & Associates: Lawyers for the Plaintiff	 
Warner Shand Lawyers: Lawyers for the Defendant