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Betanjo v Yakasa [2020] PGNC 197; N8419 (17 July 2020)

N8419

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1406 OF 2010

BETWEEN:
NICK BETANJO FOR HIMSELF
AND 100 OTHERS NAMED IN THE SCHEDULE TO THE WRIT
Plaintiffs

AND:
FRED YAKASA, METROPOLITAN SUPERINTENDENT,
NATIONAL CAPITAL DISTRICT
First Defendant

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2020: 17^th, 22^nd April, 12^th, 17^th, 22^nd June, 17^th July

DAMAGES – breach of human rights – Police raid of urban settlement – property damage –assessment of damages after trial on liability.

The plaintiffs sued the defendants (various members of the Police Force and the State) in connection with a police raid of the urban settlement in which they lived. A trial on liability resulted in judgment in favour of the plaintiffs, against the first defendant (the member of the Police Force who led the raid) and the third defendant (the State), for negligence and for human rights breaches under ss 36(1) (freedom from inhuman treatment), 49 (right to privacy) and 53 (protection from unjust deprivation of property) of the Constitution. At the trial on assessment of damages, 100 plaintiffs gave evidence and sought damages in five categories: (a) special damages (property losses), various amounts totalling approximately K4.6 million; (b) general damages for pain and suffering, distress etc, K20,000.00 each; (c) damages for trespass, K10,000.00 each; (d) damages for breach of human rights, K15,000.00 each; and (e) exemplary damages, K15,000.00, a grand total of approximately K10.6 million. In response, the defendants submitted that the plaintiffs should be awarded: (a) nothing for special damages (property losses), as the claims were excessive, uncorroborated and based on a valuation report lacking credibility; (b) K2,500.00 each for general damages for pain and suffering, distress etc; (c) nothing for trespass (as no liability was established for the tort of trespass); (d) K2,500.00 each for damages for breach of human rights; and (e) K2,500.00 each for exemplary damages, a grand total of K750,000.00.

Held:

(1) Though there were deficiencies in the plaintiffs’ evidence, damages were awarded to each plaintiff who gave evidence in the following amounts: (a) special damages (property losses), each claim being discounted by 90% to arrive at an appropriate assessment, a total of K468,389.73; (b) general damages for pain and suffering, distress etc, K10,000.00 each, a total of K1,000,000.00; (c) damages for trespass, zero; (d) damages for breach of human rights, K5,000.00 each, a total of K500,000.00; and (e) exemplary damages, K5,000.00, a total of K500,000.00. The grand total of damages awarded was K2,468,389.73.

(2) In addition, each plaintiff was awarded interest on the amount of damages awarded to them, at the rate of 2% per annum, for the period from the date of the filing of the writ to the date of judgment, a period of 9.68 years, a total of K478,373.93. The total judgment sum was K2,946,763.65.

Cases Cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221
Jacinta Albert v Joseph Aine (2019) N7772
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kolaip Palapi v Sergeant Poko (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Michael Jacob v Jim Namora & The State (2020) N8385
Peter Wanis v Fred Sikiot and The State (1995) N1350
Stanley Baine v Arnold Ulga & The State (2019) N8076
Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100
Yooken Pakilin v The State (2001) N2212

ASSESSMENT

This was a trial on assessment of damages following a trial on liability.

Counsel:

T T Yai, for the Plaintiffs
T Mileng, for the Defendants

17^th July, 2020

1. CANNINGS J: This is an assessment of damages following a trial on liability, in which the first defendant (a member of the Police Force) and the third defendant (the State) were found liable for human rights breaches committed against the plaintiffs in a police raid of Maramuni Block, Five Mile settlement, Gordon Ridge, National Capital District, carried out on Saturday 26 June 2010. A total of 100 plaintiffs have given evidence.

2. The police raid was undertaken in response to an alcohol-fuelled incident surrounding a State of Origin match earlier in the week in which two men were killed. The Police arrived at the settlement on the morning of 25 June 2010 and ordered the residents to hand over the suspects, but were evidently not satisfied with the level of cooperation they received. The raid began at 10.00 am on 26 June 2010 and continued throughout that day. The police were fully armed and a bulldozer was deployed to destroy houses, stores and other structures. There was no court order authorising the raid and it was not authorised by any other lawful process. Those are the facts on which liability has been established.

PLAINTIFFS’ CLAIMS AND DEFENDANTS’ RESPONSE

3. The plaintiffs seek damages in five categories:

(a) special damages (property losses), various amounts totalling approximately K4.6 million;

(b) general damages for pain and suffering, distress etc, K20,000.00 each;

(c) damages for trespass, K10,000.00 each;

(d) damages for breach of human rights, K15,000.00 each; and

(e) exemplary damages, K15,000.00 each;

a grand total of approximately K10.6 million.

4. In response, the defendants submit that the plaintiffs should be awarded: (a) nothing for special damages (property losses), as the claims were excessive, uncorroborated and based on a valuation report lacking credibility; (b) K2,500.00 each for general damages for pain and suffering, distress etc; (c) nothing for trespass (as no liability was established for the tort of trespass); (d) K2,500.00 each for damages for breach of human rights; and (e) K2,500.00 each for exemplary damages, a grand total of K750,000.00.

EVIDENCE

5. The plaintiffs’ case consisted of affidavits sworn by 100 plaintiffs, deposing to what the police had done and the property damage the deponent had incurred and/or witnessed. There was no evidence for the defendants.

DETERMINATION OF LIABILITY

6. The terms of the order of 1 August 2019 are that the plaintiffsestablished liability against the first and third defendants in negligence and for breaches of human rights under ss 36(1) (freedom from inhuman treatment), 49 (right to privacy) and 53 (protection from unjust deprivation of property) of the Constitution.

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES

7. In assessing damages I have had regard to the following principles:

• The plaintiffs have the onus of proving their losses 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 Pakilin 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 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 must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi v Sergeant Poko (2001) N2274).
  

APPROACH TO ASSESSMENT OF DAMAGES
8. I will assess damages in the five categories of damages claimed by the plaintiffs.

(a) PROPERTY LOSSES

9. Mr Mileng, for the defendants, pointed out many deficiencies in the plaintiffs’ evidence, in his detailed and helpful written submission. I take into account that there is a detailed valuation report corroborating the plaintiffs’ claims but I agree that the evidence as to how it was prepared strains credibility. The lead plaintiff, Nick Betanjo, states that after the police arrived on the morning of 25 June and spoke to the residents and threatened that if they did not cooperate there would be trouble, he sensed that the Police were serious, so he hurriedly sought the services of a registered valuer who came and inspected all the plaintiffs’ properties that afternoon and a valuation report was later prepared.

10. I uphold Mr Mileng’s submission that the plaintiffs’ claims are exaggerated. However, I do not think it would be appropriate to award them nothing. Clearly there was a raid and a lot of homes and other properties were destroyed. The plaintiffs have a right to be compensated for their property losses.

11. I have had regard to the approach I have taken in a number of other cases of multiple plaintiffs, in “police raid cases”. In some cases I have discounted each claim by a certain percentage to arrive at reasonable and realistic sums. For example:

• Eton Pakui v The State (2006) N2977: a case involving an unlawful police raid of Tulipato village, Enga Province. The 16 claims were each discounted by 90%.
  
• Joe Tipaiza v James Yali (2008) N3472: 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by Police and the provincial government in Madang. Each claim was discounted by 50%.
  
• Anuta Jobou v Alfred Kumasi and The State (2012) N4607: there was an unlawful police raid of Bom village in the Rai Coast district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The claims by the 155 plaintiffs were each discounted by 50%.
  
• Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221: 1,281 plaintiffs, illegal settlers on Government land in Madang, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81. It was held that there was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded. As for the claims for property damage, each claim was discounted by 90% to arrive at an award of damages for property losses.
  
• Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100: there was an unlawful police raid of a rural settlement in Madang district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The 1,335 plaintiffs obtained default judgment, but at the trial on assessment of damages, only 106 gave evidence. The 106 claims for property losses were each discounted by 90%.
  
• Stanley Baine v Arnold Ulga & The State (2019) N8076: there was an unlawful police raid of a village on Karkar Island in Sumkar district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. Default judgment was entered against the defendants. At the trial on assessment of damages, 76 plaintiffs gave evidence. Their claims for property losses were each discounted by 90%.
  
• Michael Jacob v Jim Namora & The State (2020) N8385: there was an unlawful police raid of villages on Bagabag Island in Sumkar district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. Liability was established at a trial. At the trial on assessment of damages, 107 plaintiffs gave evidence. Their claims for property losses were each discounted by 90%.
  

12. In other cases I have awarded the same global sum to each plaintiff who has given evidence. For example:

• Justin Bau v Paul Karl (2010) N4123: 61 plaintiffs were the victims of a police raid at Muledami settlement in the hilltops around Kimbe, West New Britain. In an assessment of damages following entry of default judgment against the State I concluded that the claims were exaggerated and because of the lack of precision in the amounts being claimed by the plaintiffs I awarded them a flat figure of K10,000.00 each, rather than discounting each claim.
  
• Alphonse Willie v Simon Kaupa (2016) N6553: 1,852 plaintiffs sued the Police and the State after a series of raids on villages in the Gena area of Kerowagi District, Chimbu Province. Default judgment was entered against the State, which was held to be vicariously liable for the torts of trespass to property and detinue and for breaches of human rights committed by members of the Police Force. Because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence were awarded a global sum of K5,000.00 each to cover all causes of action and all categories of damages. The total amount of damages awarded was K8,435,000.00.
  

13. I have decided to take the first approach outlined above. I will discount each claim by 90% to take account of the deficiencies in the evidence. The result of this process of assessment is shown in table 1. Column 1 is the number ascribed to the plaintiff according to the numbering in Mr Yai’s submission. Column 2 is the plaintiff’s name. Column 3 is the amount claimed by the plaintiff for property losses. Column 4 is the figure in column 3 multiplied by 10% (representing the discounting of the total claim for property losses by 90%). It is the figure in column 4 that is the amount awarded to the plaintiff for property losses (category (a) of the claims).

TABLE 1: AWARD OF DAMAGES FOR PROPERTY LOSSES

(b) GENERAL DAMAGES FOR PAIN AND SUFFERING, DISTRESS ETC

14. Mr Yai submitted that each plaintiff who has given evidence should be awarded K20,000.00 general damages. It is clear that it was a traumatic and disturbing experience for the plaintiffs. However, there is insufficient evidence and precedent available on which an award of K20,000.00 would be warranted. Mr Mileng has contended for a sum of K2,500.00 but that would be inadequate. I award each plaintiff who has given evidence the sum of K10,000.00. A total of K1 million.

(c) DAMAGES FOR TRESPASS

15. I uphold Mr Mileng’s submission that nothing should be awarded as liability was not established for trespass. It was pleaded, but not proven. Nothing is awarded.

(d) COMPENSATION FOR BREACH OF HUMAN RIGHTS

16. It is appropriate to award a separate sum as compensation for breaches of human rights. I award K5,000.00 for each plaintiff, a total of K500,000.00.

(e) EXEMPLARY DAMAGES

17. It is appropriate to award a separate sum as exemplary damages. I award K5,000.00 for each plaintiff, a total of K500,000.00.

SUMMARY

18. Each of the 100 plaintiffs who has given evidence is awarded the total of the following sums:

(a) property losses: the amount shown for that plaintiff in table 1;
(b) general damages for pain and suffering, distress etc: K10,000.00;
(c) damages for trespass: zero;
(d) compensation for breach of human rights: K5,000.00;
(e) exemplary damages: K5,000.00.

The total award of damages to each plaintiff who has given evidence is shown in table 2.

INTEREST

19. Mr Yai submitted that interest should be awarded on the total amount of damages awarded to each plaintiff under the Judicial Proceedings (Interest on Debts and Damages) Act 2015 at the rate of 8% per annum. He relies on the decision of Kandakasi DCJ in Jacinta Albert v Joseph Aine & The State (2019) N7772 to argue that despite the dictates of ss 2 and 4 of that Act, the Court is at liberty to award interest in proceedings against the State at a rate exceeding 2%.

20. Section 2 (application) states:

This Act applies to all Court Orders made against the State on or after 1 January 2014.

21. Section 4 (pre-judgment interest on debts and damages) states:

(1) Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1), including proceedings arising out of a breach of express or implied contract or mercantile usage, are taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.

(3) The maximum rate of interest in Subsection (2) applies notwithstanding that the proceedings against the State arose out of a breach of express or implied contract or mercantile usage and the relevant interest rate in the contract or mercantile usage is higher than 2%.

(4) A judgment entered contrary to Subsections (2) and (3) is a nullity and is liable to be set aside and re-issued according to law by the same judge or judges on application —

(a) by the lawyer for the State; or

(b) by the registrar, clerk or other proper officer of the court by which the judgment is given; or

(c) by any party to the proceedings.

22. As I indicated in Alphonse Willie v Simon Kaupa (2016) N6553 I cannot read these provisions in any way other than capping the award of interest against the State at the rate of 2%. This restriction applies to all Court orders made on or after 1 January 2014, irrespective of the date on which the proceedings were commenced. It applies in this case, even though the cause of action accrued and the proceedings were commenced in 2010.

23. Kandakasi DCJ stated respectfully in Jacinta Albert v Joseph Aine (2019) N7772 that he was unable to agree with the approach I took in Willie, and I must return his Honour’s favour by respectfully disagreeing with the approach his Honour took in Albert. The issue is best settled by the Supreme Court in an appropriate case. But for now, I exercise the restricted discretion conferred by the 2015 Act by awarding interest at the rate of 2% per annum.

24. As for the period in respect of which interest is calculated, I fix the start date as the date of filing the writ, 9 November 2010. The end date will be the date of delivery of this judgment, 17 July 2020. The period is 9.69years. Interest will be awarded by applying the formula D x I x N = A, where D is the amount of damages, I is the interest rate per annum, N is the period in years, A is the amount of interest. Interest has been calculated by multiplying each award of damages by a factor of 0.1938 (0.02 x 9.69) and is shown in table 2.

TABLE 2: TOTAL AWARD OF DAMAGES + INTEREST

COSTS

25. 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. The question of costs is a discretionary matter. I will award the plaintiffs only half of their costs as I have found their claims to be exaggerated.

ORDER

1. Damages are payable by the first and third defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
2. In addition, interest is payable by the first and third defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
3. The case of any plaintiff whose name does not appear in the Schedule is dismissed.
   
4. Subject to any particular costs order to the contrary, the first and third defendants shall pay half of the costs of the entire proceedings of the plaintiffs whose names appear in the Schedule, on a party-party basis, to be taxed if not agreed.
   
5. The proceedings are thereby determined and the file is closed.
   

SCHEDULE

Judgment accordingly.
_________________________________________________________________
Bristle Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants