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National Court of Papua New Guinea |
N8946
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. NO. 855 OF 2010
BETWEEN
ROBIN MARTIN
Plaintiff
AND
SUPERINTENDENT ANDY ANDERSON BAWA
First Defendant
AND
METROPOLITAN SUPERINTENDENT FRED YAKASA
Second Defendant
AND
GARI BAKI – COMMISSIONER OF POLICE
Third Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Makail, J
2021: 15th June & 28th July
ASSESSMENT OF DAMAGES – Damages sought for tort of trespass to property and negligence – Destruction of dwelling house, personal items, tucker-shop and goods by policemen – Assessment of – Award of damages – General damages – Damages for breach of constitutional rights – Inhumane treatment – Arbitrary search and entry – Unjust deprivation of property – Right to privacy – Special damages – Exemplary damages – Proof of – Lack of corroboration – Lack of independent valuers report – Lack of receipts of payments for destroyed properties – Inflation added at rate of 30 % for increased costs of goods and services adopted – Constitution – Sections 37, 44, 49 & 53
Cases Cited:
Harding v. Teperoi Timbers Pty Ltd [1988] PNGLR 128
Frank Na-al v. Fly River Provincial Government (2000) N1958
Peter Aigilo v. Sir Mekere Morauta & The State (2001) N2103
Rodao Holdings v. Sogeram Development Corporation Ltd (2007) N5485
Feria v. Lange (2009) N3574
Robert Taropen & Ors v. John Anawe & The State (2010) N3911
Bob Kol v. The State (2010) N3912
Gaian v. Yuwing (2018) N7099
Munvi v. Takai (2018) N7100
Baine v. Ulga (2019) N8076
Anis Kewa v. Desmond Kami & The State (2010) N3899
Lapun Aine v. The State (2011) N4389
MVIT v. Maki Kol (2007) SC902
Bau v. Karl (2010) N4123
Counsel:
Mr. J. Simbala, for the Plaintiff
Mr. T. Mileng, for the Defendants
JUDGMENT ON ASSESSMENT OF DAMAGES
28th July, 2021
1. MAKAIL J: Judgment on liability was entered against the defendants after a trial by Polume-Kiele J on 17th April 2019. The trial on assessment of damages was to be fixed on a date suitable to be parties. Parties have elected to go by their respective written submissions on assessment of damages which have been filed in 2020 and for the Court to consider and proceed to judgment. This is the judgment.
Brief Facts
2. The cause of action is based on the tort of trespass to property and negligence. Briefly, the facts as found by the presiding judge were, on the morning of 26th June 2009 in pursuit of suspects involved in a double-murder of two young men the first and second defendants led a group of policemen entered and destroyed properties at Gordon Ridge 5 Mile settlement by chopping down trees and plants and pulling down structures after receiving no assistance and corporation from the occupants to locating the suspects. In the process they destroyed the plaintiff’s properties comprising of a dwelling house, personal items, tucker-shop and its goods.
Damages sought
3. The plaintiff sought the following:
3.1. General damages.
3.2. Damages for breach of constitutional rights.
3.3. Special damages.
3.4. Economic loss.
3.5. Exemplary damages.
3.6. Interests.
3.7. Legal costs.
Evidence
4. The plaintiff relied on the following:
4.1. Affidavit of Robin Martin sworn 18th May 2011 and filed 25th May 2011.
4.2. Supplementary Affidavit of Robin Martin sworn 5th September 2016 and filed 6th September 2016.
4.3. Affidavit of Robin Martin sworn 17thJuly 2012 and filed 19th July 2012.
4.4. Affidavit of Nick Betanjo sworn 18th July 2012 and filed 19th July 2012.
4.5. Affidavit of Cathy Martin sworn 18th July 2012 and filed 19th July 2012.
4.6. Affidavit of Lakaipan Kitan sworn 18th July 2012 and filed 19th July 2012.
4.7. Affidavit of Lina Bernard sworn 18th July 2012 and filed 19th July 2012.
5. The defendants did not tender any affidavit to refute the assertions in the affidavits tendered by the plaintiff.
6. However, that does not relieve the plaintiff from the burden of proving his losses. The onus is on him to prove by credible and admissible evidence. He must also make sure that his losses are not too remote and mitigate them.
Findings
7. Based on the above affidavits, I find that the plaintiff lost a two-bed room dwelling house when it was bulldozed down by a bulldozer. In addition, he lost his tucker-shop when it was set on fire. The plaintiff also lost his personal items and goods and accessories from the tucker-shop. Finally, he lost cash.
General damages
8. The plaintiff claimed general damages for mental distress and hardship as a result of the trespass and negligence by the members of the police led by the first and second defendants. He claimed that he lost a dwelling house, personal items, tucker-shop, goods and accessories from the tucker-shop. His counsel submitted that given the manner in which the members of the police conducted the raid and the extent of damage to the plaintiff’s properties, K75,000.00 would be a fair and reasonable sum to award.
Loss of dwelling house
9. The plaintiff claimed that his dwelling house was bulldozed down by a bulldozer under the instructions of the first and second defendants. At paragraph 25 of the plaintiff’s affidavit filed 27th May 2011 he does not describe if it was a permanent house, semi-permanent or bush material and further, the number of bedrooms and kitchen. At paragraph 2 of her affidavit filed 19th July 2012 the plaintiff’s wife Cathy Martin referred to a residential two-bedroom house. At paragraph 9 of the affidavit of Nick Betanjo filed 18th July 2012, this witness referred to the plaintiff owning a permanent house. Another witness Lakaipan Kitan at paragraph 6 of his affidavit filed 19th July 2012 referred to a two-bedroom house. Finally, the plaintiff annexed a copy of a photograph of the house at annexure “J” to his affidavit filed 27th May 2011 and a copy of the State Lease of the house at annexure “A” to his supplementary affidavit filed 6th September 2016.
10. Based on the about statements, photograph and State Lease, I accept and find that the plaintiff owned a permanent two-bedroom house. It was not an illegal structure but on the registered State Lease described as Section 116 Allotment 10, Boroko, National Capital District. It was destroyed by the members of the Police led by the first and second defendants when it was bulldozed down by a bulldozer.
Loss of personal items
11. The personal items claimed by the plaintiff are set out at annexure “K” to his affidavit filed 27th May 2011. They are listed at items 2 to 12 and comprised of electric stove, radio, 21-inch TV screen, cooking and eating utensils, beddings and clothing, furniture, Coleman lamp, empty tins and bottles, electrical and mechanical and gardening tools, 2 x lawn movers and 2 x mover rotary.
Loss of tucker-shop
12. The plaintiff claimed loss of tucker-shop. The evidence is not quite clear from the plaintiff and his witnesses that the tucker-shop was a stand-alone structure or building such that the plaintiff is entitled to claim a separate value for its loss. On the other hand, the plaintiff, his wife and the other witnesses in their respective affidavits seemed to say that the tucker-shop was located inside the dwelling house. Given this, I find that the tucker-shop was located inside the dwelling house.
Loss of goods and accessories from tucker-shop
13. The plaintiff’s claim for loss of goods and accessories from the tucker-shop are set out at annexure “K” to his affidavit filed 27th May 2011. They are listed at items 13 to 21 and comprised of poultry house and equipment, chicks, chickens, chicken stockfeed bags, various store goods, 50 x SP beer cartons, dart board, 2 x deep freezers and 3 x eskies. This evidence has not been controverted by the defendants and I find that the plaintiff lost the listed goods and accessories during the police raid.
14. I consider that what the plaintiff has lost must be taken into account in assessing an adequate award of damages for mental distress and hardship because they are basic necessities and material things that contribute to the lifestyle of the plaintiff and his family members. The defendants did not make any counter submissions to the plaintiff’s claim for damages under this head of claim. Respectfully, I agree with the plaintiff’s counsel submissions at paragraphs 5.8 to 5.11 of his written submissions which has summarised the manner in which the members of the police had conducted the raid and resulted in the mental anguish and hardship by the plaintiff:
“The Plaintiff literally lost everything: shelter, clotting, beddings, household and gardening, utensils plus powers tools. There was nothing left for him to carry on life with. The police raid left him without any means of support as the trade store, liquor sales and poultry business were his only livelihood.
His right to lawful possession and enjoyment of his property, as owner, was forcibly and arbitrarily removed from him when the policemen forced their way into his property and destroyed everything thereon. The policemen entered the Plaintiff’s property with an intention to demolish it – and they actually did: Bob v. Stettin Bay Lumber Co. Ltd (2008) N3440
No search warrant was produced to the Plaintiff nor was there any enquiries made with him to ascertain the status of his property by the policemen. It goes without saying that when the policemen entered and remained on the Plaintiff’s property without invitation and lawful excuse, they became trespassers and remained as such in the entire course of the police raid. Needless to say, the “modus operandi” employed by the policemen in the execution of their duties (pursuing criminal suspects) was “highly negligible”, to say the least.
By forcibly removing the Plaintiff and his family from their dwelling-house at gun-point plus wanton and indiscriminate destruction and burning of the Plaintiff’s properties and assets, was an act that was clearly unjustified and unwarranted in a democratic society, having due regard to the safety and dignity of mankind. Such actions of the policemen unnecessarily exposed the Plaintiff and his family to further harm and injury from criminal elements and opportunists”.
15. I note that the plaintiff did not produce any evidence of his physical and mental state of mind following the police raid but the manner in which the members of the police had conducted the raid would simply be difficult to deny that there was some form of physical and mental anguish and hardship suffered by the plaintiff and his family members. It is about the degree of the physical and mental anguish and hardship that must be settled to determine an adequate award of damages. As the Court observed in Harding v. Teperoi Timbers Pty Ltd [1988] PNGLR 128 at 136, the “more serious and intense the degree of mental distress and frustration, the higher the amount of damages that will be awarded”.
16. In my respectful view, the award of damages for mental distress and hardship will be higher than the awards in Frank Na-al v. Fly River Provincial Government (2000) N1958 (K15,000.00), Peter Aigilo v. Sir Mekere Morauta & The State (2001) N2103 (K20,000.00), Rodao Holdings v. Sogeram Development Corporation Ltd (2007) N5485 (K50,000.00); Paschal Feria v. Ben Lange& The State (2009) N3574 (K30,000.00). This is because those cases arise from wrongful dismissal of employment and breach of contract for services cases and secondly, the extent of the destruction of the plaintiff’s properties were way beyond human comprehension. I also take into consideration the financial hardship incurred by the plaintiff over the last 12 years since the police raid on 26th June 2009 and the submission for an award of K75,000.00. Given the foregoing reasons, I think K75,000.00 is too high. A fair and reasonable sum is K60,000.00. I award this sum.
Damages for breach of constitutional rights
17. The next damages sought by the plaintiff is for breach of constitutional rights. His counsel submitted that this is a distinct and separate head of damages because of the breaches of the plaintiff’s basic rights against inhumane treatment, arbitrary search and entry, including unjust deprivation of property. His counsel supported his submissions by referring to paragraphs 19 to 21 of the statement of claim as providing the foundation in the pleadings for an award of damages for breach of constitution rights. I accept these submissions. I will consider an appropriate award of damages under this head of claim.
18. As was observed by the Court in Robert Taropen & Ors v. John Anawe & The State (2010) N3911, a police raid case at Mamale village, Laiagam in Enga Province:
“As every person in this country has rights to be protected from inhuman treatment, free from arbitrary search and entry and protection from unjust deprivation of property, the actions of the members of the police were a serious violation of the plaintiffs’ rights. In my view also, the actions of the members of the police can be best described as inhuman and cruel and done without any regard or respect to the dignity of mankind. In the circumstances, it is only fair that the plaintiffs be compensated by an award of damages for these breaches and this Court having wide powers to enforce breaches of Constitutional rights under sections 57 and 58 of the Constitution may award a reasonable award of damages to compensate the plaintiffs for the breaches of their Constitutional rights”.
19. In Bob Kol v. The State (2010) N3912, members of the police raided the plaintiff’s house and tavern. In the process, they destroyed his personal items, stole cash money, looted cartons of beer, soft drinks and other goods from his tavern and destroyed his motor vehicle. It was held that the manner which the members of the police destroyed and looted the plaintiff’s property was “inhumane and cruel”, thus a serious violation of the plaintiff’s constitutional rights. The plaintiff was awarded K8,000.00 as reasonable damages for breach of his constitutional rights.
20. The plaintiff’s counsel submitted that the present case is more serious than Bob Kol case (supra) because the dwelling house and trucker-shop were bulldozed down and personal items, store goods and accessories were looted. An award of K18,000.00 would be fair and reasonable. The defendants submitted that there is no evidence that the plaintiff was abused or assaulted by the members of the police and any award of damages should be K5,000.00. While I accept the defendants’ submission that there is no evidence that the plaintiff was abused or assaulted by the members of the police, I am satisfied that the police raid was inhumane and cruel because it was against the plaintiff’s constitutional rights from inhumane treatment (Section 37), arbitrary search and entry (Section 44), right to privacy (Section 49) including unjust deprivation of property (Section 53). I award K18,000.00.
Special damages
21. The plaintiff submitted that an award of damages under this head should cover the loss of the dwelling house, personal items and mental stress and hardship suffered by him and members of his family. Based on past awards and the nature and extent of the damage caused by the first and second defendants and members of the police, a reasonable sum is K75,000.00.
22. The defendants relied on past class action cases of Gaian v. Yuwing (2018) N7099, and Munvi v. Takai (2018) N7100 and Baine v. Ulga (2019) N8076 and submitted that the general damages were awarded between the range of K5,000.00 and K20,000.00. According to counsel, those cases were more serious than the present case because there were multiple plaintiffs who suffered extensive losses as a result of police raids. Thus, general damages of K5,000.00 is a fair and reasonable sum to award in this case.
23. First, I note there are four different sub-heads of claims for special damages being sought by the plaintiff. They are:
23.1 Damages for loss of dwelling house.
23.2. Damages for loss of personal items.
23.3. Damages for loss of tucker-shop.
23.4. Damages for loss of goods and accessories from the tucker-shop.
24. I propose to assess each of them below.
Damages for loss of dwelling house
25. The plaintiff claimed the value of the dwelling house which was bulldozed down by a bulldozer under the instructions of the first and second defendants at K140,000.00.
26. Having found at [10] supra that the plaintiff owned and lost a two-bedroom permanent house, the issue to determine is the value to be given to it. The plaintiff claimed it was worth K140,000.00. There is no independent valuers report to corroborate the value given by the plaintiff. Furthermore, the plaintiff does not say how much he spent on building materials to construct it. The defendants’ proposal for an award between K5,000.00 and K20,000.00 based on the above cited police raid cases will be disregarded because it is not clear if the houses were destroyed were permanent houses with two bedrooms or more.
27. The plaintiff also submitted that the sum to be awarded should include inflation as was held in the Lapune Aine v. The State (2011) N4389 to cover for the increase in the costs of goods and services over the last 10 to 12 years since the police raid in 2009. A rate of 30% inflation was adopted. I accept this submission.
28. Given the lack of corroboration of the value of the dwelling house, I propose to award a sum less than K140,000.00. It will be at 60% of the sum claimed. I award K84,000.00. I add inflation at the rate of 30% which comes to K25,200.00. The total sum awarded for the value of the dwelling house is K109,200.00.
Damages for loss of personal items
29. The personal items claimed by the plaintiff are set out at annexure “K” to his affidavit filed 27th May 2011. They are listed at items 2 to 12 and comprised of electric stove, radio, 21-inch TV screen, cooking and eating utensils, beddings and clothing, furniture, Coleman lamp, empty tins and bottles, electrical and mechanical and gardening tools, 2 x lawn movers and 2 x mover rotary. The sum claimed for each item ranged from K300.00 to K10,000.00. The total sum claimed is K37,200.00.
30. I accept that these sorts of items are common in households in the city more so the electric stove, cooking and eating utensils, clothing and beddings which are basic necessities. The others like the radio and TV are extras that keep the plaintiff and his family members entertained and for enjoyment. The electrical, mechanical and gardening tools and lawn movers are also extras but form part of the personal items of the plaintiff for family use.
31. Again, there is no independent valuers report or receipts of payments and invoices for the items to corroborate the sum claimed for each item. Nonetheless, it does not mean that the plaintiff will be awarded nothing. I will reduce total sum claimed of K37,200.00 by half and allow K18,600.00. I also agree that based on Lapun Aine case (supra), I will add inflation at the rate of 10% to the sum awarded which is K5,580.00. The final sum awarded for damages for loss of personal items is K24,180.00.
Damages for loss of tucker-shop
32. The plaintiff claimed the same sum of K140,000.00 at annexure “J” to his affidavit filed 27th May 2011 for the loss of tucker-shop. The evidence is not quite clear from the plaintiff and his witnesses that the tucker-shop was a stand-alone structure or building such that the plaintiff is entitled to claim a separate value for its loss. On the other hand, the plaintiff, his wife and the other witnesses in their respective affidavits seemed to say that the tucker-shop was located in the same dwelling house. Given this, I find that the tucker-shop was located in the dwelling house and as there has been an award made for the dwelling house, there will not be a further award for the loss of the tucker-shop. This head of damages is dismissed.
Damages for loss of goods and accessories from tucker-shop
33. The plaintiff’s claim for loss of goods and accessories from the tucker-shop are set out at annexure “K” to his affidavit filed 27th May 2011. They are listed at items 13 to 21 and comprised of poultry house and equipment, chicks, chickens, chicken stockfeed bags, various store goods, 50 x SP beer cartons, dart board, 2 x deep freezers and 3 x eskies. The sum claimed for each item ranged from K900.00 to K15,000.00. The total sum claimed is K45,400.00.
34. The value for each item does not have independent valuers report or receipts of payments to corroborate the precise value of each item. Secondly, in the case of various store goods, it is too general. It is not known what sorts of goods the plaintiff was trading at the time of the police raid. Thirdly, while the plaintiff has produced two liquor trading licences for 2004 and 2005 in his affidavit filed 25th May 2011, there is not one for year 2009 which was the year the police raid occurred. Due to lack of corroborative evidence and the lack of specific destroyed store goods, I am nonetheless prepared to award damages at a reduced sum. It will be reduced by half. I award K22,700.00. I agree that inflation should be added based on Lapune Aine case (supra). I apply the rate of 30% which is K6,810.00. The total sum awarded for the loss of goods and accessories from the tucker-shop is K29,510.00.
Economic loss
35. The next head of damages sought by the plaintiff is past and future economic loss from his tucker-shop, dart competition and poultry business. At the time of the police raid he claimed a monthly income of K38,500.00 and for future economic loss, a total of K4,543,000.00 for 118 months from 26th June 2009 to date of judgment on liability of 17th April 2019.
36. But as correctly conceded by the plaintiff’s counsel at paragraphs 5.104 and 5.105 of his written submissions:
“Economic loss is one form of compensatory damages intended to compensate the Plaintiff for the loss of earnings as a result of the injuries and damages sustained. The assessment of this head of damages is not easy because there is no wage to work from, it is necessary to consider a figure for an informal type business, in the instant case.
Even then, in such a business, it is quite difficult to accurately work out the loss of earnings of the Plaintiff”. (Emphasis added).
37. In proving this loss, corroboration is necessary for a precise and accurate award to be made. In MVIT v. Maki Kol (2007) SC902 the Supreme Court stressed that:
“The principles on which past and future economic loss can be awarded is clear.....One of the most important principles is that, a plaintiff must establish his economic loss, before the Court can make an award for any such losses. If the plaintiff was engaged in an income earning activity as at the time of his or her sustaining the injuries, he or she must produce evidence of both the income generating activity and its monetary value, the amounts he or she has lost and stands to lose as a result of the injuries and disabilities. Where a plaintiff produces such evidence, the Court is duty bound to assess the plaintiff’s past and future economic losses.
On the other hand, if a plaintiff fails to produce such evidence, the Court can either make no award or make a nominal award having regard to the reduction in the plaintiff’s income earning capacity to support him or herself and his or her dependents”. (Emphasis added).
38. The evidence of corroboration missing is as follows:
39. Broadly speaking, these documents corroborate the assertion by the plaintiff that the business activities operated by him bring in profit for him. For instance, the Statement of Profit and Loss for year 2008 to 2009 will be used to compare with the one in the succeeding year from 2009 to 2010 to verify if the business was making profit in 2008 to 2009 and loss in 2009 to 2010 due to the police raid. Without them, there is absolutely no independent evidence to corroborate his assertion that these business activities were turning profit for him prior to the police raid. Conversely, that profits could have been made in the future had it not been for the police raid.
40. There is another reason. The credibility, hence reliability of the plaintiff’s calculation of the monthly income is also over generous on the face of it. A loss of monthly income of K18,000.00 for store-goods, K45,000.00 for liquor sales, K4,500.00 for dart competition and K9,500.00 for poultry business demonstrates a relatively high business venture that the plaintiff has had, with a high and regular turn-over rate each month. In the real world of business, it is unlikely that the monthly income will be consistent throughout a reporting year for profit and loss statement. It is no doubt that at paragraph 5.146 of his written submissions, the plaintiff’s counsel acknowledged the overly stated income of the plaintiff when he submitted that “This amount (referring to K4,543,000.00) seem ridiculously astronomical and grossly excessive......”.
41. For these reasons, I am not satisfied that the plaintiff’s calculation of his loss or profit is reliable and it is rejected. It follows that there is lack of evidence to prove economic loss and it is dismissed.
Exemplary Damages
42. The plaintiff claimed exemplary damages against the fourth defendant because of the actions of the first and second defendants and members of the police. It is common ground between the parties that it is one of the discretionary relief which may be awarded and has a compensatory element which is intended to punish the defendants and serve as a moral retribution and deterrence. I endorse the parties’ position.
43. In this case, counsel submitted that the actions of the members of the police led by the first and second defendants “involved a significant and unwarranted departure from the proper exercise of police powers....”. Bau v. Karl (2010) N4123. I uphold this submission. The facts of this case warrant an award of exemplary damages against the defendants. This will send a clear message to the other members of the police to refrain from engaging in this type of conduct in future. The fourth defendant and the members of the police are supposed to protect lives and properties and not the other way around. As was found by the presiding judge on liability, the police raid was authorised or sanctioned by the third defendant, hence the fourth defendant is vicariously liable for exemplary damages.
44. Two of the members of the police have been identified in the first and second defendants. These two members of the police have not filed any responding affidavits to refute the assertions by the plaintiff that they led the police raid or did not stop it. Given this, it is equally fair that they too must be ordered to pay exemplary damages for failing to stop the destruction of the plaintiff’s properties. They are ordered to personally pay to the plaintiff a sum of K5,000.00 each, giving a total of K10,000.00. As for the fourth defendant, it is ordered to pay a sum of K10,000.00 to the plaintiff as exemplary damages.
Interests
45. It is common ground between the parties that the rate of interest to award on damages is 2% pursuant to Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015. The real issue is when should interest run and whether it will be on whole or part of the sum awarded.
46. While it is noted that the State Claims Court Track One has a huge backlog of pending cases, there is no explanation by the plaintiff in relation to the long delay in getting this ligation to trial after close of pleadings. For this reason, pre-judgment interest is awarded from the date of trial to the date of judgment which shall be calculated by the parties. As to post-judgment interest, it is awarded at the rate of 2% from the date of judgment on liability until final settlement. The 2% pre-judgment interest and post judgment interest are awarded on part of the total sum of damages awarded which is K240,890.00. This sum comprises of general damages, damages for breach of constitutional rights and special damages. The award of exemplary damages is excluded.
Legal costs
47. An award of costs is discretionary. Generally, it is awarded to the successful party, in this case, the plaintiff. As the plaintiff has successfully proven most of the heads of damages, costs are awarded to him, to be taxed, if not agreed.
Order
48. The final judgment and orders of the Court are as follows:
1. The defendants shall pay the total sum of K240,890.00.
________________________________________________________________
Harvey Nii Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants
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