SC1971

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA N0. 148 0F 2017

BETWEEN:
VARO RAGE
First Appellant

UA RAGE
SecondAppellant

WILLIE VARO
Third Appellant

KEPO IMANA
Fourth Appellant

AND
PATRICK RAGEAU
Respondent

Waigani: Kariko, Anis and Miviri JJ
2020: 25th June &1st July 

SUPREME COURT – appeal against assessment of damages– brief oral judgment– plaintiff’s submissions accepted - no other reasoning for quantum awarded – insufficient reasons for decision

Cases Cited:
Papua New Guinea Cases

Coconut Products Limited v Markham Faring Company Ltd (2018) SC1717
Phillip Opa Kore v Charles Lapa (2018) SC1699
Sir Arnold Amet v Peter Charles Yama & Electoral Commission (2010) SC1064

Overseas cases:

Carlson v. King (1947) 64 WN (NSW) 65
Pettitt v. Dunkley [1971] 1 NSWLR 376

Legislation:

Supreme Court Act 1975

Counsel:

Mr A Chillion, for the Appellants
Mr H Kevau, for the Respondent

JUDGEMENT

1.      BY THE COURT: This is an appeal against the decision of the National Court at Waigani given on 14th September 2017 in proceeding WS No. 830 of 2013: Patrick Rageau v Varo Rage, Ua Rage, Willie Varo & Kepo Imana that awarded damages in favour of the respondent (the plaintiff then) against the appellants (the defendants then).

2.      In that proceeding, the respondent sued the appellants for unlawfully assaulting him on 16th March 2013 during a land dispute in their village of Kelerakwa, Central Province, that resulted in him sustaining serious bodily injuries.

3.     It is noted that in June 2014, the appellants were convicted by the National Court of causing grievous bodily harm to the respondent and were each sentenced to six years imprisonment on conditions, including payment of compensation to the respondent.

4.      The decision appealed followed a trial on assessment of damages after default judgement was entered against the appellants on 10th December 2014.

Trial 

5.      The only evidence presented at the trial were four affidavits filed by the respondent:

•	Affidavit of the plaintiff that describes the background to his claims, and his personal particulars including his livelihood; and 
•	Affidavit each from three medical doctors who treated the respondent for his injuries. 

6.      In final submissions, counsel for the respondent spoke to his filed written submissions which addressed various heads of damages - general damages, past economic loss, future economic loss, and exemplary damages, but not special damages. The submissions referred to precedent cases for legal principles and for comparable verdicts.  In conclusion, the respondent claimed for the following amounts:

•	general damages	K100,000.00
•	special damages	K22,266.00
•	past economic loss	K31,200.00
•	future economic loss K250,000.00
•	exemplary damages	K80,000.00

7.      Counsel for the appellants failed to file written submissions but asked the Court to take into account the compensation payment ordered by the criminal trial, and to note the absence of a more recent medical report that would have assisted in deciding the prognosis of the respondent’s injuries.

Appealed decision

8.     After some very general discussion regarding the background of the case and the evidence produced, his Honour the trial Judge observed:

“Counsel, with respect helpfully and in a very detailed submission outlaying the law firstly on assessment of damages and also law on claims such as this detailed and very helpful and I do not need to go into those. And of course, they are from established principles of law.

In the end result, with respect, I have no problem with coming to the conclusion that the claim should be granted. I repeat, no contrary evidence, no evidence disputing, challenging and rebutting.”

9.      Later, after noting the onus remains with the plaintiff to properly prove his claim for damages even after the entry of default judgement, his Honour stated:

“I hasten to add that that there is no such problem here. So I had no problems with the conclusion that the orders sought in their respective amounts should be granted and I do so in the following manner.” 

10.     The trial Judge then awarded damages in the same amounts as asked for, plus interest and costs.

Grounds of appeal 

11.      Five grounds of appeal were filed but one was abandoned. The remaining grounds effectively allege that the learned trial Judge erred in law in not providing sufficient reasons of how he quantified each of the heads of damages claimed to reach his decision.

Submissions 

12.      On this appeal, the appellants argued that the trial Judge did not provide sufficient reasons for decision as it cannot be discerned how he arrived at his decision without properly discussing the evidence and the law. 

13.      In response, the respondent submitted that the trial Judge was entitled to accept the respondent’s evidence and submissions, and act on them in the absence of any evidence and filed submissions on behalf of the appellants. Further, the appellants cannot raise issues now that they did not contend at the trial through their failure to file evidence and written submissions pursuant to court directions.

Consideration

14.      The respondent’s argument that the appellants are now raising issues not mooted at the trial is misconceived, as the grounds of appeal rather allege insufficiency in the trial Judge’s reasons for decision. 

15.      It is the duty of a trial judge to provide reasons for decision, and where no reasons are given, it must be inferred that no good reasons exist for the decision; Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064; Phillip Opa Kore v Charles Lapa (2018) SC1699; Coconut Products Limited v Markham Faring Company Ltd (2018) SC1717. 

16.      In the Coconut Product Limited case, the Supreme Court stressed that the reasons must be sufficient to assist the appellant prepare his grounds of appeal and for the respondent to defend them, and that parties must be able to identify the issues borne out by the grounds.

17.     The Court observed that the legal obligation to give reasons for decision is not a new concept, that the subject has been widely discussed over time in other jurisdictions. The Court then cited and discussed two Australian cases, which are obviously of persuasive value, but which we consider relevant in addressing the present appeal. We quote that part of the judgement at [22]-[25] that refers to those cases:

“ 22. …In Carlson v. King (1947) 64 WN (NSW) 65 at 66, the New South Wales Full Court had to consider an appeal from a decision of a judge of the District Court, who delivered an ex tempore judgment in these terms: 

“I do not agree with the submissions on behalf of the defendant.  I find a verdict for the plaintiff for £175.  Judgment accordingly.”

23. The Full Court held that this was insufficient. Jordon CJ, delivering the judgment of the Court, said at 66:

“It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal.  This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.  The duty is incumbent, not only on magistrates and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council.”

24.Some 24 years later this principle was adopted and expounded in the decision of the New South Wales Court of Appeal in Pettitt v. Dunkley [1971] 1 NSWLR 376.  That was a case where a pedestrian plaintiff was struck by a motor vehicle in a pedestrian crossing.  The trial judge in the District Court entered judgment for the defendant.  He gave ex tempore reasons as follows:

“It would not help in view of this lady’s condition of health, psychomatic (sic) or otherwise, for me to give any other reasons.”

25. It was not surprising that the plaintiff’s appeal was successful. The Court of Appeal found that the findings by the primary judge were insufficient to meet the legal requirements imposed upon him. These cases reinforced the proposition that a trial judge has a duty to give reasons for decision and if there is a claim that no reasons were given, the appellate Court must be satisfied if the oral judgment give adequate and sufficient reasons to enable the case to be laid properly and sufficiently before the appellate Court.”
									(Our underlining)

18.     In the present matter, the trial Judge merely accepted the submissions of the respondent, while influenced by the fact that the respondent’s evidence was unchallenged. That in essence were the reasons for decision, and that clearly offends the legal principles just outlined. Plainly, a court fails in its legal duty if it simply pronounces that the plaintiff’s submissions are accepted and therefore his claims are granted. His Honour was obliged to discuss the evidence, refer to the law, and apply the law to the facts to get to his decision. The error is compounded by the fact that his Honour failed to properly discuss the submissions by counsel for the appellants, and even though there were no submissions from the respondent on special damages, he nevertheless granted the special damages sought.

19.     It is our view that the trial Judge erred in failing to give sufficient reasons for arriving at and making his decision. Hence, the appeal must succeed.

New trial

20.     Of the powers under s.16 Supreme Court Act 1975 that this Court may exercise on hearing an appeal, we consider it proper that a new trial is ordered so that the damages and other relief claimed are properly considered and decided.

Costs

21.     As to costs, we think it fair that each party bear their own costs of and incidental to this appeal. 

Order

22.      We order that:

(1)	The appeal is allowed.
(2)	The whole of the orders of the National Court made on 14th September 2017 in proceeding WS No. 830 of 2013: Patrick Rageau v Varo Rage, Ua Rage, Willie Varo & Kepo Imana, are set aside.
(3)	The assessment of damages shall be re-tried in the National Court.
(4)	Each party shall bear their own costs of and incidental to this appeal.
(5)	The Registrar shall list the case for mention in the National Court at Waigani, and advise the parties accordingly. 

________________________________________________________________
Chillions Lawyers: Lawyer for the Appellants
Rageau Manua Kikira Lawyers: Lawyer for the Respondent