Lagan v The State [1995] PGNC 32; N1369 (15 September 1995)

Having considered the issue of the 56 plaintiffs failure to give evidence in the present case, I am of the view that I should re-open the case and grant liberty to Mr Kopunye to file individual affidavits in respect of these 56 plaintiffs within 30 days from today or within such time as extended by the Court upon application. l then peruse those affidaffidavits and if I wish to ask any questions on those affidavits, I will require their attendance in Court, otherwise I will proceed to assess damages in respect of all the 59 matters based on the evidence and the written submissions already filed. I have adoptis course becaubecause I did not raise this issue with Mr Kopunye at the time of the hearing so in all fairness, I have decided to give the plaintiffs the opportunity to prove their damage.WS 485 OF 1994 VIRONICA NICA ANDALE & DAVID KANDAKASI V THE STATE

The plaintiffs Vironica Andale and David Kandakasi both gave oral evidence. They also provided written statements to Mr Lai which is in evidence. In addition, they rely o ethe evidence of Robert Lai, Jeffrey Ambia and other witnesses who gave evidence as to the raid generally. I am sati on tevidehat thet thet they are affected by the police raid. The only iss as to what what what damage they suffered and the extent ose damages.

Her village-tyge-type trade store with stock inside which was trading at the material time was burnt down. In her evidence, she descrdescribed the store as having iron roof, plywood walls, windows and cement floor. She had been operatin store for many years with herself being the store keeper. She re-st the store fore fore for K3,200.00 per month. Daily egs from sa goods isds is K100-K230.00. Alck were burnt down.&#160 Also bwant was her tool bool boxes and spare tyres belo to hsband and her sewr sewing machine. She di give evidence as toas to the cost of buildiuilding materials, the specific trade store stoems lost in the fire; and dand details of her loss of income. She sae gave the list to M to Mr Lai who assessed the value. This liss two photographs aphs showing the location of the burnt down store taken a few weeks after the fire are in evidence. ibit 0;E&# and &#nd “8220;F” respectively). The photograph onows the dthe door doorway area of the store. There isemnants ofcement fent floor of the store shown in the photograph. No burnrugatedgated iron rron roof is shown in the photograph

Tst of items lost lost in the fire compiled by Mr Lai from instructions received from the plhe plaintiff (Exhibit “E” &220;F”) and set out iout in the Writ is as follows:

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a. Trade S/ore idth="137" valign="top">

30 x timbers 4 x 2 @ K22.60 each
50 x timbers 2 x 2 @ K19.40 each	K970.00
80 x timbers 1 x 1 @ K16.80 each	K1,344.00
44 x plywoods @ K17.00 each	K74/div>
44 x roofing iron 15ft @ K35.00	K1,540.00	(both wall and roof) div>
6 x window frames @ K4.50 each	K27.00
Nails	K150.00
Bush material flooring	K200.00
Transportation cost	K300.00
Labour cost	K600.00	<
Total	K6,557.00	K6,557.00

div>

Applying the principles as to proof of damages which I set out in WS419 of 1995 Yange Lagan & 58 Others v The State, I am satisfied that a building used as a trade store was burnt down. However, I am uncertain as to the value of materials and cost of labour and the stock in the trade store which were burnt in the fire. The plaintiff has notn evin evidence on thetters

In relation tion to the stock, all she said was that that the monthly new stock was K3,200.00 (plus say another K800.00 for existtock which makes K4,000.00). Inllage environmentnment, ent, a trade store built at K6,557.00 with turnover of K3,200.00 new stock per month is a recognisable size of modern commercial venture. There is no evidence of the store having a trade store licence, no evidence of income tax returns, no evidence of any banking activity as to the monthly expenditure of substantial cash paymor stock, no evidence from someone who constructed the trad trade store and the expenditure on materials and labour, etc. The lompiled by Mr Lai is i is only secondary to the plaintiff’s evidence. The primary evidencthe plae plaintiff is gener vague. On the evidence, I am not satisfied that a semi-modern trade store worth that that figure in building materials, labourstock was burnt down. Nevertheless, l award a no a no a nominal sum to compensate the plaintiff for the loss of a village-type trade store. In remote villages manydinildings of many shapes and sizes are used as trade stores. S business code of conductnduct is not the order of the day. Manrate without trading ling licences. Most do not file tax returns. Many operate off-and-on basis. Incomes received are not saved in d in bank accounts. Stocuctuate with the occuroccurrence of unforseen eveccasi expenditure of earnings and savings. That is the order of the dthe day in remote vile villages. It woulunfair to let thentthentiff go without damages.&#es. I will awa,000.00 for the the building and K1,500.00 for stock. I considat in a village enge enment, a village trade store would be built and operated foed for a sum in the vicinity of these figures. I realise that this is an rary figure but as I said Jonathan Mangope Paraia v The Stae State & Others, once the plaintiff has proven that she lost a village trade store, she is entitled to damages; she cannot be allowed to go without a remedy.&#1y. Aghan Williams LJ put it i it in Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 at p. 792:

“The fact that damages cannot be assessed with certainty does not reliev wrongdoer of the necessity of paying damages.”

In the circumstances of the instant case, its the duty of the Court to arrive at a probable value of the house. As Devlin J sn Biggin v Pe v Permanite [1951] 1 KB 422 at 438:

“Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best i.”

The plaintiaintiff also claims economic loss of K24.00 net profit per day from the date of loss to the date of judgment or such time as the Court considers appropriate. The plff’s evidence ence is that the gross daily takings from April 1993 - June 1993 were amounts ranging from K100.00 - K245.00 and K24.00 net profit loss. Thintiff has not taken aepn aeps to mitigate the loss bess because she did not have any money to rebuild and re-stock the trade store even though she built the stn 1988 and had been operating it from some years.

If K24.00 net profit loss for the two year period is accepted, then the total economic loss comes to K17,520.00. The plaintiff ha offered ared any reduction for contingencies such as the store not operating on any of the days of the week such as Sundays, disruptions due to family commitments, tribal conflicts, and so onhe store operating at a losa loss. Loss in business is always a common phenomenon in business. This is more so in a village environment, where strict business habits and practices is not the order of the day. In a store lhis where ther there ievidef records kept, npt, no banking documents, no regular accounting or stock-takes, etc, it isit is always difficult to maintain a consi flow of income. Be that as it I still thin think thek the plaintiff is entitled to some damages for economic loss. I consider K17,520.00 net net profit loss for 2 years is far too excessive for a village trade store bui t at K2,500.00 having stocsay K1,500.00 in value is excessive. I would estimate the loss of aggregate income fome for at least 6 months at K1,000.000 andard the same. I say six months becauat ihat is a reas reasonable period during which she would have operated this trade store pably in the two years follofollowing the destruction.

As for the plaintiff’s claim for personal assets, there is no evidence to support the value of the tool box, sewing machine and spare tyres. All I hs a list of them.&#em. The valuixed to them on thon the list in the writ and in Exhibit “E” is the estimate ofai which is hearsay or secondary evidence. As for the amount claimedefor economic trec trees, there is no evidence from the plaintiff that economic trees were burnt or destroyed. The affidavit ofopunye whie which annexes a list of economic tree crops, etwing their value provided bded by the Valuer General is there but there is no evidence to show what economic crops, etc were lost.&#1 decline to award damages fges for these things.

There is a claim for K1,000.00 for violation of Constitutional rights provided under S. 44 (Freedom from arbitrary search and entry), S. 49 (Right to privacy) and should I add S. 53 (Protection from unjust deprivation of property). The plaintiff reli severalveral cases including David Wari Kofowei v The State [1983] PNGLR 449 and Tom Amaiu v The State [1983] PNGLR 87. Howeve is clear from the pthe ples in the Writ and the evidence that the same properties whis which were destroyed were the subject of the search and raid. Inderagraof the Statement ment of Claim says the method of the the said raid and search were by indiscriminately burning down of houses her with contents and general destruction of properties of the plaintiff for which the plai plaintiff has already been awarded compensatory damages above. I de to make an award for for compensatory damages because it would amount to double-damages for the same loss of property for the same reasons I gave recently in the case of James Koimo v The State, Unreported National Court Judgment No N1322 dated 31 May 1995.

Finally, the plaintiff claims K1,000.00 for exemplary damages. For reasons I gave in Jamis Koimo v The State, supra, I am inclined to make an award of K200.00 for exemplary damages.

The plaintiff also claims 8% per annum on all damages from the date of commencement of proceedings to the date of judgment; i.e, 11/7/94 - 15/9/95 (for 430 days). I awnterest at that rate.&ate. The est awarded is K309.0009.00.

op">

Geiv>General damages:

Trade store

K2,000.00

Economic loss(loss of store profit)

K1,000.00

Exemplary damages

K200.00

Interest (est (430 days)

K302.00

Total

K3,502.00

I award ds to the plaintiff in the sum of K3,502.00 (inclusive of interest).

I also award cosd costs to the plaintiff.

DAVID KANDAKASI

a. Trade Store and Stock In-Trade

The plaintiff is an uneducated villager. He is claiming geneamages ages for the loss of his village trade store, economic loss of income from the store, damages for violation of constitutirights and exemplary damages. I first deal with compensapensatory damages.

Thep>The evidence here comprises of the oral evidence of the plaintiff himself and the evidence of Robert Lai and Jeffrey Ambia plus the list of items tendered in evidence through Mr Lai (Exhibit “H”) and photograph taken 1 week after the raid showing a picture of the plaintiff at the scene of the burnt down store, (Exhibit “I”).

In the plaintiff’s oral evidence, he described his trade store as a big trade store, much bigger than Vironica Andale’s trade store, built of iron roof, corrugated roofing iron wall, plywood walls, cement floor, 2 windows and fitted with a honda electricity generator which he bought for K1,890.00. He had comd building it twit two weeks before the incident and stocked it up with K6,000.00 - K7,000.00 stock and operated it for two days when it was burnt down. Upon my own questioning, he said he spent K14,000.00 - K15,000.00 0.00 only for building materials. Heged a carpenter to buildbuild it and paid him K3,000.00 for labour cost. He also had a snooker table inside which he bought for 0.00. Earlier on, he said his swore was worth K7,000.00.

According to the list list prepared in english and the plaintiff’s name signed by the same person who compiled the list (Exhibit “H”), the total cost of materials excluding transportation and labour cost is K8,885.20. Labour (K3,000.00) and transportation (K1,200.00) costs added makes the total K13,085.20. Stock value is listed as006,000.00. The snooker table vis the the same. The statement that he empl employed a storekeeper at K80.00 per fortnight. Ws in Court, the plaintiffntiff said he employed no one. In the it also say#160;oy60;oyed a security gity guard at K60.00 per fortnight, whereasereas in Court he said he did not employ anyone else to assist him as he was onarting to operate the store. Fumore, in the list list iist it says he had an electric fryer or electric food warmer which he bought for K850.00 whereas in Court he is silent on this aspect. on another list, an electelectric freezer valued at K850.00 is set out and trade Store goods are valued at K4,000.00 and the trade store itself is valued at K8,000.00. In the Writ, the ric fr iser is not pleaded.aded.

According to the Writ, the value of building materials including labour, transportation, elecfryer, snooker table and generator and remains of building materials, labour and transportaportation and stock is K24,474.60.

There is no doubt that the plaintiff lost a modern village trade store. After seeing the praph in h in evidence, I am satisfied that a trade store built of modern building materials was burnt down. However, the exact of mode modern trade store ing and cost of materials cannot be ascertained. Perh Perhaps, the cter whor who built the house could have clarified the cost e materials. The plaintiff’s ece ence is inconsnconsistent as to the cost of materials. The ece as to the valustocustock is between K6,000.00 0.00 - K8,000.00 but there is no other independent evidence such as bank account records to support this. hese mstances, I will do whdo what I have done to Vironica nica Andale’s case, that is to do the best I can and estimate the va#160; I would take what the plaintiff himself said was the value of the store including stog stock (which he later deviated from) which was that it was worth K7,000.00. I award K5,000.00 on tsis asis that a lesser amount may have been paid for stock and materials.

b. Snooker Table and Generator

To these, I would add the value of the generator (K1,890.00) and the snooable (K1,800.00) less 50% f50% from each item. There is no othedence such such as an invoice to compare a new item with a second hand. As both items were boug seas second hand price, I would deduct 50% on each item for depreciation and the possibiliat a lesser price may have have been paid. I award K945.00 and K900.s0 respectively.

c. Electric Fryer

I decline to make an award for an electric fryer because there is no evidence from the plaintiff on this item.

d. Chicken House, Chicken Chicken Feed

In addn addition, the plaintiff claims in the writ, K600.00 for a bush material chicken house, 9 chicken stock feed bags worth K30.00 each (K270.00) and 1 tool box worth K400.00. In his oral evidence, h noid not specify the value of the chicken house. He said he hay chicken ston stock feed bags inside but did not specify how many and their value. Ht further y there were 10re 104 chickens valued at K12.00 e.00 each.

I will disallow the claim for the 104 chickens because this ispleaded in the writ: Repas Waim v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 254.

As for the chicken house and stock feed, there is no evidence from the plaintiff as to the value. The only mention of theiuevalue is in a handwritten list prepared in english which was tendered through Mr Lai (Exhibit “H”) but it is not signed by the plaintiff. Thunts d there is the same same as the amount in the Writ.&#1t. That ls hearsay evidence wnce which I will not accept. In trcumstanceam satisfiedsfied a bush material chicken house was burnt down. I am not saot satisfied 9 bags of chicken feed were bbecauproceed on the bahe basis that I have not allowed a claim for 104 chickens. I considensider that K60fo00 for a chicken house wicapacity to accommodate some 104 chickens is a bit excessivessive. Id allow K200.00 only.

e. Tool Box

As fortool box, there is no evidence from the plaintiff to supporupport his claim. I disallow that claim.

f. Loss of Trade Stoofit

The plaintiff ciff claims loss of net profit from the trade store up to K50.00 per day from date of loss (29/7/93) to datjudgment. The total claim for syearsyears is K36,500.,500.00. view, for a small villagellage trade store built and stocked for an amount below K7,000.00, this net profit income is excessive. Besides, there is no evidence of a trading licence, bankocuments, etc to support a rt a recognisable modern commercial venture. I accept that this plaintiff’s store was bigger tironica Andale’s store and therefore the net income wome was higher. Also unlike Vironica Andahe, the plaintiff in this cad completed the store and put stock in and traded for only only 2 days before it was burnt down. &#1herefore his estimate cote come he has given to this Court would be highly speculativeative. Hed encounter normal businbusiness crisis in the operation ofbusiness during its maiden stages. Tore he is nois not an expe experienced businessman to be able to give a realistic estimate.; In some documents tenderendered in evidence through Mr Lai, he has estimated his income at K6,000.00 per month. In another one of documencuments, he has listed daily trade store income he received from 6/5/93 - 15/7/95 at a total of K7,790.00. That coicts ral evidence tnce that he had only traded for 2 days. In these mstances, I s, I s, I am not satisfied that he earned or woave earned daily net profit of K50.00 7 days a week for 2 years. How I will only only awardaward a nominal net profit loss of i for 6 months. I awar award K1,500.0>

g. Violation of Constitutional Rights

In relation to the plaintiff’sm for K1,000.00 for breach each of constitutional rights enumerated in Ss. 44, 49 and 53, I refuse to make an award for the same reasons I gave in Vironica Andale’s claim.

h. Exemplary Damages

Also for the same reasons I gave in Vironica Andale’s claim, I award K200.00 for exemplary damages.

i. Interest

I also award 8% interest on the damages awarded.

A summary of the awards made in respect of David Kandakasi is as follows:

idth="143" valign="top">

Chicken house

idth="227" valign="top">

General damages	Trade Store & Materials & Stock	K3,000.00
	Snooker table	K900.00
	Honda onda generator	K945.00
	K200.00
Economic loss		K1,500.00
Exemplary Damages		K200.00
Interest (430 days)	K636.0036.00
Total		K7,381.00

I award costs to the plaintiff.

WS 486/94 - KOMAI NIPI & KA WILSON V THE STATE

KANDATO WILSON

In the Writ, the plaintiff claims compensatory damages in the sum of K5,231.00 for the loss of his village trade store, K6,628.40 for the loss of a semi permanent four bedroom house and K5,282.80 for personal belongings which were burnt with the dwelling house. He also claims K1,000.00vior violation of constitutional rights and K1,000.00 for exemplary damages.

The evidence comprises of the oral evidence of the plaintiff himself, Messrsand Ambia and other witnesses in other matters who gave gene general evidence on the police raid. Mr Lai tendered several lists of items with their corresponding value. (Exhibit “K”) He also tendered a photograph showing the burnt down sf the house or store. (Exhibit “L”).

a. Semi-Permanent Dwelling House

In his oral evidence, the plaintaid it was a 4 bedroom house made of iron roof, plywood wald wall (inside) and blind wall (outside). He did not give the value of the house in terms of the cost of materials and transportation and labour. He said he paid aenter K60r K600.00 to build/p>

According to the Writ, the value of the house is K6,628.40 which is the same as that that provided in one of the lists produceMr Lai (Exhibit “K”). In two other lists ists provided by Mr Lai (Exhibit “K”), the value of the house is K5,000.00. The photograph whas taken aken a week after the raid does not show the remains of any corrugated iron roof oclose the scene of a big 4-ig 4-bedroom building.

In these circumstances, I am not satisfied that a semi permanent house valued at K6,628.40 or thereabouts was destroyed. I am however satisthat somt some form of semi-permanent village-type house was destroyed in the raid. I will awarinal damages ofes of K2,500.00 for this house.

b. Personal Belongings

In the the plaintiff claims K5,23K5,231.00 for personal belongings lost in the fire. Included in this is K.00 f.00 for “Stock at retail price” which I take to be for the trade store. I willider this claim when when I look at the claim in respect oftrade store.

The remaining amount for personal belonbelongings is therefore K1,231.00. The plff in his oral evideevidency said he lost everything iing including cooking utensils, beddings and a sewing machine but did not give an estimated value. Nhelese list of personal inal items provided in the Writ&#16t which sat corresponds to t to the lists tendered in evidence by Mr(Exhibit “M”) is not unreasonable. I will award K1,231.00 for loss of personal onal items.

c. Trade Store & Stp>

In the Writ, the plai plaintiff claims K5,231.00 for the trade store which includes K600.00 for labour and K300.00 for transportation. In addition, there claim faim for K4,000.00 for stock at retail price. Several liigned by the plae plaintiff (Exhibit “K”) provided by Mr Lai shows the cost of the trade store building at K4931.00 and in another list K2,000.00.&#As for the stock one of the list shows he had K6,000.00 - K0 - K4,000.00 worth of stock inside. In another document, the total value of store goods inside is specified at K1,800.00. Also in f these lists, the, the only house said to have been lost b plaintiff is listed as a bush material house valued at K500.00.

The plaintiff in hiin his oral evidence said the trade store uilt at a cost of K6,000.0000.00. It had iron roofing, the outside wall was corrugated iron and inside was plywood and was built on posts. The same carpenter uilt thlt the dwelling house built the store and he paid him another K600.00. He did ive a breaof the K6he K6,00K6,000.00 in terms of materials and transportation. In relation to the store stock, he first said he lastked the store on 26/7/93. Later he se took stock-takk-take on 26/7/93. Still lall later he said he bought stock at K4,000n 20/7/93 which he added onto existing stock.

There here is vague evidence, in some cases conflicting primary and secondary evidencto the value of the trade store and the stock. The phhe photogrlso does noes not support a semi-modern village trade store. Neeless, I find that a vila village trade store made of some modern building materials was burnt down. I also find thate were stock inside.&#de. I would award tme damages ages as I awarded Vironica Andale, tha, that is K2,500.00 for the store and K1,5 for the stock in trade store.

d. Loss of Profit

There is oral evidence from from the plaintiff that he built the trade store in 1986/1987 and was earning about K100.00 per day. He eed a store keeper whom whom he paid about K50.00 per fortnight. He did not give any evidence as to his daily net profit. In twts prepared by Mr Lair Lai bearing the plaintiffs sign (Exhibit “K”),21;), on one list he gives the daily gross income at K110.00 and in another list, he gives daily income figuresing from K100-K432.00.

In Mr Kopunye’s submissions, he suggests K24.50 net profit loss per day. If this is acd, the nett pett profit loss for the last two years (from date of destruction to the date of judgment) would be K17,885.00.

my view, given the uncertainty of trade store income in the evidence, it is difficult to s to say if the net daily income was K24.50 daily on a consistent basis 7 days a week for 365 days in year. I would think that for a gillage trade store built at K2,500.00 and stocked up to K1,500.00 at one time and taking into account all possible contingencies, a reasonable award for profit for 6 months would be K1,000.00. I award the same.

e. Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, and David Kandakasi’s case, I decline to make an award for violation of constitutional right>

f. Exemplary Damages

For the same reasons I gave in Vironica Andale and David Kandakasi’s case, I award K300.00 for exemplary damages.

g. Interest

I award interest at the rate of 8% per annum.

h. Summary Of Damages

A summary of the damages awarded to the plaintiff Kandato Wilson is as follows:

idth="187" val" valign="top">

Personal belongings

K851.00

top">

K9,882.00

General Damages	Dwelling house	K2,500.00
	K1,231.00
<	Trade Store building	K2,500.00
	Trade Store stock	K1,500.00
Economic Loss	Loss of Trade Store Stock	K1,000.00
Exemplary Damages		K300.00
Interest days)
Total

KOMAI NIPI

In the writ the plaintifims general damages of K8,628.00 (K6,928.00 for a Trade Store and stock in trade, materialsrials, labour and transportation and K1,700.00 for stock), one bush material pig house (K900.00), 5 pigs valued at K450.00 each, K3,677.40 for a three bedroom bush material dwelling house plus household belongings which include cash crops and trees as well as 2 dogs valued at K60.00 each and another 5 pigs valued at K750.00. The plaintiff also claim loss of profit from the trade store at K25.00 per day for the 2 years. He then claims K1,000.00 for breach of Constitutional rights and K1,000.00 for exemplary damages.

a. General Dam/p>

(i) Trade Store

There are 3 lists provided by Mr Lai dated 3/8/93 (Exhibit “N”) which are unsigned by the plaintiff. The first shows that the tthe trade store was valued at K5,000.00 and stock valued at K1,700.00 (a total of K6,700.00). The second list the tradetrade store was valued at K6,927.20 and stock was valued at K1,700.00. The third listd 10/8/93 sh93 shows the trade store was valued at K6,000.00 and stock valued at K4,000.00, plus cash money of K200.00. Onthe lshows he employed ayed a storekeeper at K60.00 per fortnight and a security for K30.0030.00 per fortnight and the store income w0.00 per day.

The oral evidence of the plaintiff is that the trade store was built oilt of cement floor, iron roof, iron roofing for outside wall and plywood for inside wall and rough timber from the local sawmill. H not give a value of the the trade store building in terms of cost of materials, labour and transportation. He said he had stothe stor store the previouswith K2,000.00 and they were burnt before he sold them.&#16. He saidid not employ a stoa storekeeper. He also said the stncome was K120.00 per day and got new stock every month.&#1h. According t photograph takh taken at the scene of the trade storeding bit “O̶”), the remains of corrugated iron roof are shown. On the evid evidence of the plaintiff and the photogrI am satisfied that a villavillage trade store built of corrugated iron roof and local sawmill timber was burnt down. As to its in tof materialsrials, labour and transportation, the vari various lists give conflicting figures and therefore, I will therefore noept the various figures given there. In the absence of any sworn evidence of the plai plaintiff on those matters, I am once again left to estimate its value. imate the trade store to b to be valued at K3,000.00. I award tme.

As fors forstock, the oral evidence ofce of the plaintiff conflicts with the two different values given in the three lists. I think the figures beenatnflated. I think stock valuedot mort more than than K1,000.00 would have been stocked. I awa,000.00 for stock
k
(ii) Bush Material House “Pig” and Pigs

According to the 2 li 2 lists provided (Exhibit “N”) thee two instances where 5 pigs valued at K450.00 each are mene mentioned. The list also shows a bate material house valued at K930.00 was burnt. The plaintiff i oral evideevidence says he lost 10 pigs which where all burnt - all valued at K500 - K600 The no mention of a bush mush material house which mich might have been used to keep the pigs.&#16 is not clear fror from allevidence whether this bush material house was used to keep the 10 pigs or that 5 were kept kept here and the other 5 kept in the othelling bush material house as well. In the Writ, K2,25K2,250.00 for 5 pigs valued at K450.00 each appears twice, once under the category of trade store and the other under the category of bush material dwelling house. From vidence, I am unable able tclude whether two sets of 5 of 5 pigs valued at K450.00 each were burnt or only one set of 5 pigs. I circumstances, I wouly auly award damages for one set of 5 pigs valued at K450.00 eac0 each. Id K2,250.00 for 5 pigs .&gs . Iine to make an awor the bthe bush material house because there is no evidence froe from the plaintiff to support this claim.

(iii) 2 Dogs
here evidence from thom the plaintiff that he lost 2 dogs.&#160 I dow K120.00 for the 2 do 2 dogs.

(iv) 3 Bedroom Bush Material Dwelling House and Household Contents

The plaintiff’s evidence supports the list provided by Mr Lai.&#16am satisfied a bush materiaterial dwelling house valued at K600.00 and other household belongings and crops were burnt or destroyed. I award K1,307.40 for the dwelling house and household belongings.

(v) Loss of Trade Store Net Profit Income

One of the list shows the plaintiff earned between K30.00 - K145.00 gross income per day from the trade store. Another shows the daily grly gross income was K80.00 and monthly income was K2,400.00. It also shows heoyed a stoa store-keeper at00 per fortnight and a security guard for K30.00 a fortnight. The plff’s o7;s oral oral evidence is that he earned K120.0 day but did not employ a store-keep160; I thinkthinkthink the values on the list are inflated just like the employment of a trtore keeper and security isty is inflated. Also in the light of the iotality of the evidence giving 3 different daily income figures, I am of the view that the figures are being inflated.

Then the daily profit rate of K25.00 per day given by the plainti217;s lawyer for 2 years wors would yield a profit income of K18,525.00. No deduction is offere conr contingencies such as loss due to non-operation or from other causes. I think a village tstore bore built at K3,000.00 and stocked at K1,000.00 woul render that kind of net profit. I ta reasonablenable aggreaggregate profit for at least 6 months operation would be K1,500.00.; I award the same.

>
(vi) Violation of Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, I refuse to make a separate award for violation of constitutional rights.

(vii) Exemplary Damages

For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.

(viii) Interest

I award interest at the rate of 8% on both general damages and economic loss.

(ix) Summary of Awards

A summary of damages I have awarded is as follows:

5 live pigs

K2,250.00
idth= valign="ign="top">
3 bedroom dwelling house and personal belongings

General Damages

Trade Store

K3,000.00

Trade Store stock

K1,000.00

K 100

Economic Loss

K1,500.00

Exemplary Damages

K300.00

Interest (430 days)

op">
K882.00

Total

K10,239.00

WS 488/94 - MARA KULAP & MASINE LEKE V THE STATE

MARA KULAP

I Writ, the plaintiff claims K840.00 for a bush material dwel dwelling house, K4,288.00 for personal properties, K3,256.80 for a trade store, K1,500.00 for trade store stock, economic loss of K24.50 for daily net profit loss of trade store profit and damages for violation of constitutional rights and exemplary damages.

There are several lists provided by Mr Lai (Exhibit “Q”). There is also a phaph show showing the partial scene of a house with a small piece of metal and security wire suggesting that a modern house was there. There is no indication inpthe photograph of extensive damage by fire of the fence and pandanus trees surrounding the building.

a. Bush Material Dwelling House

The plaintiff in his oral evidence said the was a four bedroom bush mash material house where he and his three wives and their children lived. Although he did not give any evidence on the value of this house, I accept the amount given in the list which is K840.00 as being reasonable. I award.00.
b. Personal onal Properties

(i) Household items

There are 3 cat3 categories of personal properties. t, hold items such as clothclothes, cooking utensils, gardening tools, etc. The plainplaintiff in hil oral evidence said they lll their properties behind and were burnt. Their total value was notngiven in evidencidence. Accordo the list and tht, tht, the total value comes to K1,490.00. I der thir this amount reat reasonable and I award the same.

(ii) Live Animals/p>

The plaintiff also claims in his evidence he lost 3 dogs. He0; He said they weret.&#nt. Later on0; upestioning , me, me, he said he lost one mother dog and 2 puppies. He di give tive their resp respective value. Upon my ionin said he cnotd not tell if they were killed or buor burnt, they were all gone by the time hime he returned. According to the Wrd the, all 3 dogs are are valued at K60.00 each suggesting they were all of the same size.&#160 OnevideI am notm not satd satd he lost any dogs. I also think it is mokely kely the dogs were the first animals tols to apprehend danger and escape. Ise to an award he dogs.
The plaintiff also also clai claims in the Writ and the list that he lost a cat valued at K60.00. Butid noe any evidence on e on this. Thre, I refuse to make an e an award for the cat.
(iii) Food Crops, Trees, etc/p>
The third category is for food crops, pandanus trees, etc. Inlist and thed the writ, rit, he claims 15 sugar cane, 12 taro plants, 5 banana trees, 20 pandanus trees and 20 kaukau stems and varieties of vegetables were destroyed. In his oral evidenhe plff tiff said it was a as a custom in Pogera to have the house surrounded by trees, sugar cane, banana trees, pandanus trees and were all burnt. By looking at totograph whph which was taken a week after the raid, oid, only the leaves of pandanus trees appear to have been burnt. All pandtrees next to the the house are intact. In the circumstances, nk tink the plaintiff is exaggerating the extent of the damage. The plaintiff has not given a value of the crops. According tolist and the wthe writ total value is stated at K871.00. I thint is exis excessive.sive. I awa00.00 for the damage mage to the leaves of the trops d exposure to the the heat.

c. Trade Store

In
In the Writ and the list, the plaintiff claims K3,256.80 for the trade storeding excluding stock. #160; It icribed as being bing built of iron roof, cement floor and bush material timber and plywood shelves.

In his oral evidence, the plaintiff said it was a big store with another 2 room on the inside. It had iron roof, irof walf wall (outside) and plywood wall (inside). At that time, d put new stew stock of K400.00 plus some old stock. gaged a caer to build it f it for a fee of K300.00. Daily income was K100er daer day. day. He did not me anything abhg abhe bug having cement fent floor. He also did nve an estimattimate of the value of the trad trade store building. The photograps not the remains of a of a cement floor either. In the lihe list, he says he engaged a store keeper at K30.00 per fortnight. In hil evidencedenied this this.

On the evidence, I am satisfied that a village type trad trade store with iron roof was burnt.&#16am noisfied it had alld all the features described in the list and writ and in the plaintiffRf’s evidence. I estimate the vof the stoe store to be similar to Vironica Andale’s store. I award him K2,500.00 for the trade store building.
Trade Store Stock

In the Writ and the list, the total stock is stated at K1,500.00.0.00. Butactual stock he says wrys wre than K2,000.00. In his oral evidehe said haid he h he had just stocked up for K400.00. No evidens given as to theo thee of existing stock prior to the new stock. There is e is no evidence as to the monthly average new stock. In the circumstancecannot accept K1,500.00 as the total of the stock which werh were burnt. rd K700.00 which I think iink is a reasonable value ofstocka trade store of e of this size.

e. Trade Store Profit Loss

In the Writ, the the plaintiff claims K25.00 net profit lor day. According to o to one oflihe lists, the daily gross income ranges between K20.00 - K58.00. The plaintiff in his oral evidence said the daily income was K100.00. He did not state the net net profit. These figureslict each othh other.& If the plaintiff’s calculation of K25.00 per day is accepted, then for the 2 years, ars, the net profit loss is K18,525.00.&#1 thins figure is excesexcessive. &#16reasonable profitrofit ofit for a village trade store valued at K2,500.00 and stocked with K700.00 at one time is K600.00 for at least 6 months of operation. Id the K700.00.

f. p>f. Breach of Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, I refuse to make an award here.

g. Exemplary Damages
h. Summary of Damages

A summary of the damages I have awarded to Mara Kulap is as follows:

idth="203" val" valign="top">
Pigs
Personal propertiperties
K8,021.00

General Damages

Bush material dwelling house

K840.00

K800.00

Crops

K200.00

<

K1,490.00

Trade store building

K2,500.00

Trade store stock

K700.00

Economic Loss

K600.00

Exemplary Damages

K200.00

Interest

&#160v>

K691.00

Total

I award costs to the plaintiff.

MASINE LEKE

In the Writ, the plaintiff claims K1,740.00 f2 storey bush material dwel dwelling house, K3,600.00 for one 500g gold bottle, K1,264.00 for 2 tool boxes, K3,217.00 for 200 cns and K3,943.00 for for personal belongings. The plaintiff alaims K1,00K1,000.00 for breach of constitutional rights and00.00 for exemplary damages.

a. 1 x 2 Storey (Bush Material) Dwelling House

A
According to the Writ and one of the l this house was built at a&at a cost of K1,740.00. Another lisws its value atue at K1,500.00. The plaintiff in his evidence said even though he is a qualified carpenter, he engaged another carpenter to build the house for a fee of 2 pigs worth.00 a00.00ectiveltively becy because he (the plaintiff) was employed by a company. The house wase was bui posn posts. It had 5 rooms andured 8m d 8m x 5m. It had kunai. Undernnderneath the house, he kept chickens which he looked after for selling.; Thentiff did not give a value of the house in terms erms of cost of materials and transportatirtation.

In the absence of any other evi, I am prepared to accept tept the amount of K1,740.00 as being reasonable. I award the K1,740.p>
b
b. 500g Gold Bottle

In the Writ the plaintiff claims K3,600.00 for 500g of gold at K7.20 per gram. In one of ists, it says 1 ys 1 x bottld at 50 grams at K3,600.00. In anotist, the plae plainplaintiff says 500g of gold worth K3,600.00 and still on the same list hs 500g at K8.20 per gram valued at K4,000.00. Also inso in that list plae plaintiff is quoted as saying because he did not expect the raid, he was “busy crushing huge rock of gold and the 5t K8.20 per per gram: equal K4,000.00”.

In hil evidence, the plaintiff siff said the 500g of gold worth K6 - K7.00 per gram was burnt. He said &#I put the gold uold upstairn the house was burnt, they they got burnt. Also because kerosene waidinside, they were burnt to ashes.” He broughtgold from Kare Kare and was intending to come to Mount Hagt Hagen to sell it but it was burnt only 2 days after he arrived from Moune.
The plaintiff is a carpenter by profesrofession. It is normal for a village based carpenter to own one too. InWrit, he claims to have have kept 2 tool boxes fues full of tools valued at K1,264.00 which he kept at his house which weret.&#1here is no explanation in his oral evidence as toas to why or how he had 2 boxes containingining almost identical tools in each box. Also in his oral evidence,ahe says he bought the 2 tool boxes for K1,200.00. Neverthelessm inclined to d to accept what he says because that is his profession and he may have valid reasons for having 2 tool boxes. I K1,200.00 but reduce 3ce 30% for depreciation for use because he has been a carpentrpenter for many years going back to 1969. I award K800.00.

dcken Project

In the Writ and the lists, the plaintifintiff is claiming 200 chickens at K12.00 each (a total of K2,400.00), 8 cn feed bags at K26.00 each (K208.00) 3 coleman lamps at K60.00 each (K180.00), 1 x 44 gallogallon kerosene drum at (205 litres) K342.00 and other minor items. otal amount claimed is K3,s K3,217.00.

In his oral evidence, the plaintiff said the 200 chickens were 8 weeks old and “I was selling them for K12.00 each so they were all burnt.” He had 7 chicken feed bags each valued at K32.00 (a total of K224.00). He said he also locoleman eman lamps and a 44 gallon kerosene drum which he bought for K200.00 which were placed inside the chicken house. These es conflict with theh the figures given in the Writ and thes except for the 200 chickehickens. r the chickens, the plaintlaintiff did not clearly say whether he had sold some of them yethat he was going to sell thll them. r the 44 gallon kerosene dene drum, the plaintiff did not say if the 44 gallon drum was actually in use or a new one. In these mstances, I am agam again left to estimate the value of these items. There is also no receipt to confirm these figures. I willw 50% of the claim oaim on the basis that the plaintiff may have sold some of the chickens dy, or used some of the kerosene already or that a lesser price may have been paid for the the items and for other contingencies such as loss from sale of chicken. I award K1,500.00.

e. Personal Effects

There are two categories of personal effects. First, personal properties such as clothes and traditional costumes. The total claim in tht fort for these items2,943.00. A major comr component of this claim is K2,199.00 for various types of ladies clothings and traditional costumes.

Taintiff in his oral evidence said he lost all of his belongelongings and the personal belongings of his wife and children. No speciation was made of e of traditional costumes. No value was given.
In t>In these circumstances, I am again left to estimatevalue of personal belongings. I accee value given in then the Writ but in respect of t of the ladies clothes and traditional cos, I think it is excessive sive either because their value had depreciated or that lesser prices may have been paid. I will allow K100 for thos those items. Therefthe total damages I es I award for personal effects inclusive of ladies clothes is K1,744.0>
The second type is for 2 live pigs valued at K300.00 and K500.00 respectively, 3 dogs dogs valued at K40.00 each and 2 cats valued at K40.00 each. In his oral nce, the plainplaintiff said he lost some pigs but did not say how many pigs he lost and their value. He also did not mention anything about loosing dogs or cats. Therefore, I disallow the claims in respect of the dogs and cats. As for the pigs, I acceplohe lost 2 pigs valued at a total of K800.00. Therefore, I awa00.00.
.

f. tion of Constitutional Rights

For the same reasons Ions I gave in Vironica Andale’s case, I disallow this claim.

g. Exry Damages

For the same reasons I gave in Vironica Aica Andale’s case, I award K300.00 for exemplary damages.

h. Interest

I award interest at 8% per annum.

i. Summary of Damages

A summary of the damages awarded to Masine Leke is as follows:

idth="143" val" valign="top">
Gold

General Damages

Dwelling house

K1,740.00

K360.00

>
Tool>Tool boxes

K800.00

Chicken project, etc

K1,500.00

>
Pers>Personal effects

K1,744.00

Pigs

K800.00

Exem Damages

&#1v>

K300.00

Interest

K684.00

Total
>

K7,927.00

WS 487/94 - MUNAK LEPAI & WILLIAM WAPEN V THE STATE

MUNAK LEPAI

In the Writ, the plaintlaims K16,000.00 for a new new Mazda 15 seater bus, K156.00 for new spare tyres and K1,870.00 for a bush material dwelling house with household contents which includes tools (K270.00), clothing’s (K400.00), sleeping gears (K390.00), cooking utensils (K200.00) and a sewing machine (K160.00).

He also claims loss of PMV earnings at K200.00 per fortnight from date of incident to the date of judgment, damages for violation of constitutional rights and exemplary damages.

a. Dwelling House and Contents

There is no list from Mr Lai on this other than the list compiled by the plaintiff’s lawyer (Exhibit “Y”).

The plaintiff’s oral evidence is that his dwelling house and personal belongings such as mattresses, a sewing machine and other belongings were burnt. He gave a com list of the the items to Robert Lai and Jeffrey Ambia. Robertgave oral evidence ince in Court in support of the plaintiff but he only gave evidence as to the PMV bus. The list cod by laint8217;8217;s 17;s lawyer is hearsay upon hearsay which I cannot accept. Neverthelrtheless, accepwhng what the plaintiff say looking at the total amount claimed in the Writ, I do not think the sum of K1,870.00 is unis unreasonable. I award the same.b. M15da 15 Seater PMV Bus

In the Writ, the plaintiaintiff claims K18,026.00 for the loss of a PMV bus. The various lis tendplus alus a picture of the burnt Mazda bus (Exhibit “V” & “WRW” & “X”) gives the of the bus at K16,000.00. Acco to these documents, tts, the bus was only 1 year old old and was registered until 6 July 1994 and was burnt down on 29 July 1993.

The plaintiff gave oral evidence that he is a businessman who operated two trade stores at Mulitaka, a Petrol Station at Paiam village, another Petrol Station at Katiak village near the Pogera Airport and a red 15 seater Mazda bus. This bus wast by police ince in the raid. Hght the bus at PNG Motorsotors in Mt. Hagen but he could not remember the year. He bought it fo,000.00 eve0 even though the asking price was K18,000.00. He had the bus as a PM 1 yM 1 year 2 months before it e it was burnt. At times he drove it himself but normally it was driven by his driver who paid K210.00 petnight. He also employed a crew at K80.00 per fortnigrtnight. On the 4th week of every month, he put the vehicle in for service cost of K300. - K400 K400.00. bus was sometimes used to t to transport people from Pogera to Mt. Hagen for K15.00 per person or K30.00 per person per return trip.

There are several unsatisfactory features in the plaintiff’s case. First, there isleading in g in the Writ as to the registration number of the Mazda bus.

Secondly, there is no proper evidence as to the tration number of the bus. The reference to this in o in one of the lists tendered byed by Mr Lai where it gives the registration number as P480 N. This evides hearsay.

Thirdly, there is no independent evidence, documentary or otherwise, of the purchase by the plaintiff of the bus from PNG Motors, Mt. Hagen at K16,000.00 some one year, 2 months prior to its destruction. No purchase documents, no registration and third party insurance documents and no PMV permit have been tendered in evidence. There is some mention in one of the lists supplied by Mr Lai that these documents were given to the plaintiff’s lawyer but they are not in evidence.

But the plaintiff in his oral evidence says he cannot remember the registration number because “it was all burnt”. In my view, if they were burnt, then copies of these documents or confirmation of these facts can be easily obtained from the PNG Motors, Mt. Hagen or the Traffic Registry in Mount Hagen. Copies of the PMV Permit ofirmation thereof could alsd also be easily obtained from the local Land Transport Board office in Mount Hagen or Wabag. It is tant ve independent dent corroborative evidence, especially documentary evidence, to supporupport the plaintiff’s oral evidenceo a recognisable business venture such as a PMV business. The fhat the PMV is opis opis operated by a village man with no strict business code of conduct does not excuse him from complying with the requirements of law as to registration, insurance and PMVit and licensing of PMV driV driver’s. There is also the rement oent of law that PMV owners file income tax returns to the authorities. There is no evidof this beis being done in the 1 year period this particular PMV was in operation. Asas put by J in John Tohn Tohn Tuink Salmon & Others v The State & Others, N1272 dated 14 October 1994 at p. 2:

“While Court may be lenient with strict evidentiary matters with village claims once you are clae claiming for what are major economic activity enterprises the Court is entitled to insist on proper evidence in the nature of ledgers and account books and even taxation returns to comply with the modern laws. The plaintiff saat all hisl his records were lost in the destruction of the store however with modern activities there are copies and other records such as copies of documents with the suppliers of substantiantities of goods such as thas this large claimed amount of cigarettes... The Courts cannot findmentgment based on mere assertions or assumptions.”

Fourthly, there is no independent evidence that the Mazda bus was driven by a driver who had a nt driver’s licence or PMV licence. The driver iver has aot beot been called to support the plaintiff’s story.

Fifthly, there is no independent evidence such as Bank accounts to show the flow of income from the bus for the 1 year, 2 mon was in operation. It0; It is n for a businessinessman in the position of the plaintiff to operate a bank account to operate his business.

Sixthly, the plaintiff is claiming the full purchase price of the vehicle even though he used it for 1 year 2 months before it was destroyed. He has offered no reduction for depreciation. It is normal toct a high righ rate of depreciation for a vehicle operating in this remote part of the country.

Seventhly, the plaintiff has not called anyone from f theshops he took thek the bus for service every 4th week of thof the month and paid substantial money for service. They would alsoirm if the the bus was being operated monthly as a PMV or otherwise.

On the whole of the evidence. I am not satisfhat tzda buda bus was a new one or only 1 year 2 months old, that it was running and operatperated as a PMV at the time of destructiowever, I am satisfied that a Mazda 15 seater bus owned by the plaintiff shown in the photoghotograph was burnt. In the circumst, I will onll only award 20% of the amount claimed as a nominal damages for the body of the Mazda bus only including the spare t I award K3,200.00.

c. Economic Loss

For the same reasons I have given iven above, I decline to make an award for economic loss.

d. Violation of Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, I decline to award any damages.

e. Exemplary Damages

For the same reasons I gave in Vironica Andale’s case, I award K200.00 for exemplary damages.

f. Summary of Damages

A summary of the damages awarded to the plaintiff Munak Lepai is as follows:

General Damages

K1,870.00

Mazda bus and tyres

K3,200.00

Exemplary Damages

K200.00

Interest

K497.00

Total

K5,767.00

WILLIAM WAPEN

In the Writ, this plaintiff is claiming K14,000.00 for a 15 seater toyota hiace bus which was not burnt but damaged only, K850.00 for a bush material house and K4,526.00 for personal belongings which included 10 diesel drums valued at K132.00 each (K1,320.00), K500.00 for one tool box, and 2 pigs valued at K400.00 each. laintiff is also claiming ming loss of income from the PMV at K200.00 net profit loss per fortnight for the 6 months the PMV wasoperating (total of K2,400.00). He is also claiming damages for breach of constitutiotutional rights, exemplary damages and interest.

a. 15 Seater Toyota Hiace PMV Bus and Loss of Profit

The documents tendered through Mr Lai are 4 lists of ilost, (Exhibit “YRY” and “Cc”), two photographs showing the damaged bus (Exhibit “Z”) and registration and third party insurance documents. The photograow one of the the tyre of the bus flattened and some dents appear on the side of the vehicle. f the lists show that the the bus was valued at K14,000.00 whereas another list shows its at K18,000.00. StillStill another lhows tows the purchase price of the vehicle at K18,000.00, less K3,000.00 for depreciation for the use of the bus for 2 years and therefore its value as at the time of damage is stated at K15,000.00.

In support of the claim, oral evidence was given by the plaintiff and his brother and part-owner/driver Mr Wapen Poke and Robert Lai. The evidef Robert Lai was was given first followed by the plaintiff and Wapen Poke in that order. At th, Mr Lai was recato cato cl some evidence.

The plaintiff’s evid evidence is that he bought the bus in 199n 1992 at Ela Motors, Mt. Hagen for K18,00 The bus was owned jointly by him and his brother (War (Wapen Poke) and was registered in his name. At the time of the incident, he was operating it as a PMV and transporting passengers between Pogera and Mt. Hagen at a return fare of K30.00 per return ter person. The bus operated evey of t of the week between Pogera and Mt. Hagen. #160; He yed aerriver who was paas paid K100.00 per fortnight and a crew at K80.00 per fortnight. Neither he is brother drov drove the bus. us was servince ah. 160; At the of the incidencident, the police lice brokebroke all the glass windows and opened the engine and lit a match and burn&#160 engi the buhe bus was destroyed and a new engine was was bought for K2,000.00. A mechanichanic was K700.0700.00 to repair the bus. The bus was not operating for six months when it was being repaired. Thereafter it was up andinunning again.

Robertfirst gave evidence before the plaintiff and Wapen Poke gave their evidence. His evid evidence hat the the inside of the engine with all the electrical wirings were smashed with stone and later petrol was poured over it and burnt. The tyres were alrnt.& Six; Six months later, the engine and other parts wers were replaced at a cost of K2,700 - K3,000.00 (including labour costs).& He was shown by Mr Kopunye a list of items (Exhibit “cc”) showing the value ofue of the bus at K14,000.00. He said was the depreciateciated value whereas the new value was K18,000.00. Asked by Mr Kopunye if th1t (K14,000.00) was a mistae admitted it was “because the cost of replacement of the engine was K2,700.00.”#8221; Heied that the K2,700.00ld.00ld be deducted from the K14,000.00 and the balance of K11,3K11,300.00 should actually be claimed. If was the case, then inie iniew, the plaintiff would only properaim that that K2,t K2,700.00, not K11,300.00, because the bus was not destroyed completely.
After the plaintiff and Wapen Poke gave their evidence, nce, Mr Lai sought to rectify the mess he had earlier created. The followecord of what isat is transpired between Mr Kopunye and Mr Lai and the Court appears in my notes:

/td>
Can you cite the specific rules you rely on?

“Kopunye
/div>
Q.

This vehicle, William Wapen’s vehicle, is the vehicle still operating?

Lai

A.

Yes.

Kopunye

Q.

Is it still operating now?

Lai

A.

Yes, 2 weeks ago, I saw it being pushed along. It is not moving now. It is sthere.

Kopunye

Seek to amend Statement ofnt of Clai Claim to amend WS 487/94 paragraph 11 (b) and 13 (e) to show that it was a complete loss. Also to aparagraph 13 (d) (d) as to economic loss.

Court

To Kopunye

Kopunye

I do not have the N.C.R. with me now.

Court

Make the application in your written submissions and I can rule on it then as part of my deliberations.”

I have checked Mr Kopunye’s written submissions and noted no such application being made however he has proceeded to make his submissions on the basis that the bus was a complete write-off.

On the whole of the evidence, I am satisfied that the plaintiff was the owner of the 15 seater bus, white in colour, registration No P496N. But Iot satisfied that thet the bus was damaged in the manner described by Mr Lai, the plaintiff and Mr Poke. If it was, then the res orts or other independent evidence for the repair of the ave not been produced even even though there was substantial repair work done by a specified motor mechanic. I am also not sati thatbuse bus was a write-oite-off. is no sign of any bany burns t car or thor the car. If the enwas set on fthe wthe whole bus would have been burnt. If as Mr ays the bus was swas still operating 2 ng 2 weeks ago, which was on or about the seconk of ry 1995, then then the evidence of Mr Poke and the plaintifintiff cannot be believed. The pleadings,lists and thnd the oral evidence of the three witnesses are so vague or conflicting that it would not be proper to award damages in the sum claimed in the Writ n the evidence. I decline to ma award of d of damagesmages.

For the same reasons, I am not satisfied on the evidence that the bus was being operated as a PMV 7 days a week with full passenger load between Pogera and Mount Hagen. There is no eviden a currecurrent PMV Permit and there is conflicting evidence of a driver and crew. There is howevidence of thof the bus beegistered as a PMV because it had “P” registration number but that is not enougenough. I circumstances, I refu mafu make an award for economic loss. I t the passagassage from from Woods J in John Tuink Salmon’s case which I quoted in Mulepai’s case, that these matters cannot be left to into inference. They must be proved with proper evidence. Where evidence iduced but but the evidence is so vague or contradictory as such that the Court cannot accept its truth, the Court is entito fint the loss has not been proved and dismiss the clhe claim for damages. That is exactlxactly whaavI have decided to do in this case.

b. Personal Properties

On the evidence, I am satisfied that the plaintiff lost the other personal items mentiin the list (Exhibit “DD”) which corresponds wids with the list in the Writ excluding the value of the Mazda bus. Id K4,526.00 which I consiconsider is reasonable.

c. Bush Material House

Also on the evidence, I am satisfied the piff’s bush material house was burnt. I award K850.00 whicthe amhe amount claimelaimed in the Writ.

d. Violation of Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, I decline to make a separate award unhis heading.

e. Exem Exemplary Damages

For the same reasons I gave in Vironica Andale’s case, I award K200.00 for exemplary damages.

f. Interest

I award interest at 8% per annum.

g. Summary of Damages

K200.00

General Damages

Personal Properties

K4,526.00

Bush material house

K850.00

Exemplary Damagev>

Interest

K52v>K526.00

Total

<
K6,102.00
/div>

I award costs to the plaintiff.

WS 489/94 - POKOLI HENO & WAPEN POKE

POKOLI HENO

In the Writ, the plaintiff is claiming K6,818 for a tool box containing tools, K15,662.00 for a permanent four bedroom dwelling house, and K2,868.00 for personal belongings. The total claim is for K25,348.00.

There are four separate sets of lists supplied by Mr Lai. (Exhibit “DD”) Some of the values for each item are different to the main list prepared by Mr Kopunye.
The oral oral evidence of the plaintiff is that he is a carpenter by profession. ntly, he is unemployed andd and stays in the village. At the ti the incident, het, he also appears to have been unemployed. Ocnally, he worked PA cont contractors at Pogera. From 1972 - 197 workedorkedorked as a carpenter in Bougainville. He is educateGrade 3 only.only.&#16 did not give any evidence as to his qualifications in carp carpentry. Afhe fire, he gave a list list of properties to Mr Lai. tool box ff tools was burntburnt, one of such tools was a Ls a Lamb lever valued at K1,200.00. Apart from tool, he did noid not any nce about the othe other tools and the value of each tool as well as the total value of thef the tool box and tools. He also di say e values wees were the purchase price or depreciated vted value.

According to one list, the total value of the tool box antents is K6,818.00. According other list, the the value of the “tools” 221; is K1,000.00.

On the evidence, I consider that K6,818.00 worth of tools is too much for a single tool box. Also the tools werdoubt usbt used by the plaintiff as early as 1972 and they would be in bad shape by 1993. I alsnk the plaintiff is n is not a well qualified and skilled cter to own tools up to this value. Hwhat I mightmight call a ll a village-based carpenter by “experience” only.&#16 these circumstances, I wouI would only allow K800.00 for one set tool box with complete set of tools which I consider is a fair value of one tool box.

b. Permanent Dwelling House

In his oral evidence, the plaintiff described his house as a four bedroom house with the kitchen room making it 5 rooms in total. asured 8m x 6m and had irod iron roof. The outside wall was madroof roofing iron and blind wall and inside was made of plywood. It had 5 windows. It was builposts. pla0;plaindid not give any any figures as to the value of materials, labour and transportation costscosts.

According to one of the liste houself lued at K10,535.00. Another list says says thes the house is K4,000.00. Still aill another liss K1ys K15,000.00. There is a praph (Exhibit ibit “EE”) which shows the plaintiff sitting down at the site of the burnt house with the remainsurnt gated iron roof.

In the circumstances, I a, I am satisfied that the plaintiff lost aost a house which had corrugated iron roof. But I am not satisfied athto the other features of the house. I am also not satisfied that the house was built at a cost of K10,000.00 - K15,662.00. I absence of any sworn evin evidence from the plaintiff as to its value, I will do the best . I K2,000.00 which I thinkthink is a reasonable vale value.

c. Personal Family Belongings

In his oral evidence, the tiff said he lost all his family’s personal belongings such as clothes, cooking utensutensils. Everything except the clothes he wore that day were burnt. Also his pandanus trees, taro, sugar cane and other garden crops were burnt.

In onthe lists, the total value of properties is given at around K3,447.00. Another list sist says its K2,259.00. The photograows pandanees rees next to t to the house remaining intact except for some leaves which were burnt.

I think a figure over K3,0 is eive. I award 1,500.00 in damages for personersonal belongings which amount I think isnk is still a bit high but as a carpenter and being involved in modern way of life, he would have had more valuable household properties over and above the other villagers.

d. Violation of Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, I decline to make an award here.

e. Exemplary Damages

For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.

f. Interest

I award interest at the rate of 8% per annum.

g. Summary of Damages

A summary of damages I have awarded for this plaintiff is:

width="179" val" valign="top">
House
K300.00

K434.00

General Damages

Tool Box

K800.00

K2,000.00

Personal Belongings etc

K1,500.00

Exemplary Dam/div>

Interest

Total

K5,304.0004.00

WAPEN POKE

a. Personal Properties

In his oral evidence, the plaintiff said his dwelling house with all his personal belongings were burnt. He did not describe his house. He also said he lost 4 spare tyres for a dump truck and 2 spare tyres for the PMV bus owned by his brother (Wilham Wape). He dt give any financial eial estimates of the value of thtems.
In one of the the lists, the plaintiff gives the value alue of the bush material house as K500.00, the household properties is git a total of K1,490.00 and and spare tyres for a 25 seater bus at K500.00 and spare tyres for the PMV 15 seater bus at K200.00. The total amount comes to K3,690.00. Except for the spare tyr t of the Dump truck or 25 seater bus, the values attached to the other properties are reasonable and I accept them. I decline ke an award for for the spare tyres for the 25 seater bus se it has not been sufficieficiently shown by the plaintiff that the ownership of these spare tyres is not related to a 25 seater bush he owned.

I award ward K2,190.00.

b. Violation of Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, I decline to make an award here.

c. Exemplary Damage

I award K50.00 for exemplary damages.

d. Interest

I award interest at 8% per annum.

e. Summary of Claims

General Damages

K2,190.00

Exemplary Damages

K50.00

Interest

K211.00

Total

K2,451.00

WS 490/94 - FRANCIS MINAPIN & KAI POKOLI

FRANCIS MINAPIN

In the Writ, the plaintiff claims K4,742.50 for personal assets, K31,012.00 for a H60 high covenant house, K8,056.00 for a trade store building, K3,000.00 for trade store stock, K1,000.00 for a bush material “cook” house, K3,000.00 for 4 tool boxes and K200.00 one bush material “pig” house. The total amount comes to K51,010.50. In addition, he claims es ages for violation of constitutional rights and exemplary damages and economic loss frome store business.

a. High Covenant H60 House

The plaintiff in his oral evidenvidence described his house as a 3 bedroom house measuring 20m x 15m house with iron roofing, outside wall made of iron roof, inside wall made of plywood and built on post. It had 4 windows (one per room). A carpenter built it for K4,000.00 in part payment for labour cost. The cost of transportation was K1,200.00. There is noence from the pthe plaintiff as to the total value of the house, no evidence as to any housn used by the carpenter, anr, and no evidence as to cost of materials. He said he spoke to Mr Lai and Mr Ambia and they made a list of the building. There are fours supplied bied by Mr Lai (Exhibit II.1-2). In one list, the vas K31,0K31,012.00.&#16 another list, the value is K30,000.00. Sin anot another list, the, the value is K6,000.00. There are footographs (Exh (Exhibi220;JJ”). They show the plaintiff snanding besi beside his burnt down house with corrugated iron roof lying around.

On vidence, I am satisfied that some kind of permanent buildinilding with corrugated iron roof was burnt down. But I am not satisfied tt t it was a H60 type permanent house, whatever that type of house is. I am also not satisfied that the house was valued a,012.00 because there is no supporting evidence from a qualified carpenter who built the hohe house, there is not one single copy of eipt or evidence from any established suppliers and there iere is no banking records to show the movement of substantial amounts of money at one time to build the house. For instance, for thehase hase of timber at a total of say K15,316.00 and iron roof at K3,168.00, if the plaintiff’s copy of the receipts were burnt in the fire, the established suppliers should have their cf receipts or at least the the general information.

I was faced with a similar situation in Jonathan Mangope Paraia v The State N1343 (24 June, 1995) where I was asked to estimate the value of a L40 type house. In tase, the plaintiff losf lost the house in the same police raid. The plaintiff’s evidence was supported by the carpenter who built the house and two ict Officers who saw the house before it was burnt. T60; The plaintiaimed K40, K40,000.00. I awarde,750.00. Ini; Ininstant case, taintlaintiffntiff’s evidence is not supported by similar evidence. Nevertheless, doing tht I st I can, I ete thue ofplaintiaintiff’s house at between K3,000.0000.00 - K6,000.00. rd K5,000.0000.00 which I ch I consider is fair and reasona/p>
b. Trade Store Building and Trade Store Stock and Lond Loss of Trade Store Profit

The oral evidence of the plaintiff is his trade store was big anig and long. It was built by a carpeforr for a fee. It was built of roof, outs outside was made of roofing iron and inside was plywood. There were 2 rooms - one for stock and one for the customers. It was stock one prior to the inci incident. He stocked up every very wery week. He emplo storekeeper whom whom he paid K100.00 per fortni#160;income was K130 -130 - K140.00 per day.

As to the claim in respect of the trade stor store building, there is no evidence from the tiff as to the cost of the the building materials. There is noence from the cthe carpenter who built it and the house plan he used. The photographs show the nemains of (burnt corrugated iron roof) the building. One of thts shows the cost costhe building at K8,056.00.&#00. Another liows its value atue at K7,000.00. Still another list shows its value at K800.00 only.
In these circumstances, it is difficult to ascertain the the precise value of the trade store building. I am satisfied that a viltrade store built of corrugated iron roof was burnt. 160; I will all K1,500.00 0.00 for the trade store building. I awardsame.
to the vthe value of trade store stock, the plaintiff in his oral evidence does does not mention anything about the type alue ock. With a th a re-stock at a weekly rate and daily income of K130 - K140.00 per day day and a storekeeper employed to operate the store, it sounds like a sizeable business activity. Two oflists of stock showsshows the value at K3,000.00. Another list shows K1,000.00. One list says tnthly incomincome turnover is K3,000.00. There is no receipt foor rjor recent purchas stock, no evidence of trad trade store licence and income tax returns. Fhis I infer that the trad trade store was a village - type store which had some stock. I wouldd K700.00 fo00 for for stock.

As to the plaintiff’s claim for loss of profit,plaintiff in his oral evideevidence made no mention of the daily profit margin. The plaintiff’yer aler allocates K24.50 as daily net profit. That would mean the total otal net profit loss for the 2 years would come to say K17,858.00. The plai has not od any reny reduction for contingencies such as buas business loss or for non-operating days. I K17,885.00 net profit vfit village trade store would be far too excessive. I would award K600.r at leat least 6ast 6 months of operation following the detion.

c. Bush Material House “Cook”

The plaintiff in his oral evidence said his small kitchen buildingh he used to bake flour wasr was burnt. He did not say if it waush bush material house or modern house. According to one of thts, sts, he claims K1,000.00. Ik that amount is too exce excessive for a “small house cook”. I awar0.00.
d. 1 x Mash Mash Material “Pig house”

The plaintiff in his oral evideevidence described this house as a big “baterial house” with iron roof. He did not give an estimate of its value. 160; In one of ists, the pthe plaintiff claims K200.00. I do not think K200.00nreaunreasonable. I award the s/p>
e. Per. Personal Assets

In the Writ plai claims K4,742.5042.50 for various personal household itemsitems, clothes and garden crops. According to f the lists, sts, the amounimed is K10,058.50. A60; Another lisws K4,500.,500. In his oral evi, the plainplaintiff just said he lost all his personaongings but did not give any value.

The plaintiff isff is an employee of Placer (PNG) Ltd. He was yed as a plumber aner and cter and was earning K250.0050.00 per fortnight. Much of the personalngingsgings listed in the Writ are modern items. I amsfied the tiff is capa capable of owning those items. #160; However, I am atisfieisfied the values allocated to each item becausis noar if they are thre the depreciated value. Some items which appear te have substantiaantial value have not been proven in the piff’s oral evidence once or appear to have been over-valued, e.g. one water tank valued at K800.00 according to one list and K5 according to another list.list. In these circumstances, I reduce the plaintiff’s claim by 50%. I will award K2,400.00.
>
f. Tool Box

In the Writ, the plaintiff claims K3,000.00 for 4 tool boxes. Accordi one of the lists psts plai lost 3 tool boxe boxes at K100.00 each, the total being K300.00 only.

The plaintiffntiff’s oral evidence is that he losool boxes - two for plumbing and two motor mechanical toolstools. He did not give any value. Inormal for one village-bage-based plumber to have one tool box. I would only allow K200.00 for one tool box. As for the 2 tools for motr motor nics,e is no evidence that he is a motor mechanic.&#16. It0; It is only reasonthat that as a driver and owner of a car, he would onle a s the basic necessecessary tools. I waward K100.0100.00 for for a set of the basic tools such as screw driver, spanner, pliers,

g. Violation of Conf Constitutional Rights

For the same reasons I gave in Vironica Andale’s case, I decline to make an award.

h. Exemplary Damages

For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.

i. Interest

I award interest at 8% per annum.

j. Summary of Damages

A summary of damages I have awarded to this plaintiff are as follows:

width="161" val" valign="top">
Tool Box

General Damages

H60 Dwelling House

K5,000.00

<
Trade Store Building

K1,500.00

Trade Store Stock

K700.00

&#/div>

House “Cook”

K100.00

House “Pig”

K200.00

Personal Assets

K2,400.00

K300.00

K600.00

Exemplary Damages

Kdiv>K300.00

Interest

K1,046.00

Total

width="101" valign="ign="top">
K12,146.00

I award costs to the plaintiff.

In the Writ, the plaintiff claims K10,755.00 for a trade store with 2 be 2 bedroom on one side, K1,600.00 for trade store stock, and K936.00 for personal properties. He alsims economic loss ofss of trade store profit at K24.50 for 2 years, damage for violation of constitutional rights and exemplary damages.

There are sets of 5 lists (Exhibit “LLR“NN”) and a phoa photograph (Exhibit “MM”) showing the plaintiff standing besides the remains of his burnt down store. The remains are gated iron iron roof and a tool box.

a. Trade Store with 2 Bedrooms

The plaintiff’s oral evidence is that he paid a carpenter K1,200.00 to build the store in 1987. He gave money of K1,200.0000.00-K1,300.00 to his carpenter every time the carpenter came to Mt. Hagen to purchase the building materials. The carpenter was not c to support his story. He did not givalue of thef thef the trade store building. According to one o lists, sts, the tradee building was valued at K9,000.00.

The plaintiff has not produced one single receipeceipt which supports the purchase of building ials. Copies of these receipts jf major purchases shos should be available at supply stores in Mt. Hagen. There is also no evi of a of a trading licence being issued to the plaintiff to operate the building as a store. Fre photograph, I am satd satd that a building having iron roof was burnt down. I would estimate alue of t of the the building at about K2,500.00. I the same.
b. Trade Stde Store Stock

In his oral eral evidence, the plaintiff said he stocked up the store before it was bur160; otal value of oldf old and new stock burnt was K1,600.00. The lprovided by Mr LaMr LaMr Lai does not set out the actual stock and the costs per item. It merels K1,600.00 worth orth of stock was burnt.

As I have already said, there is no evidef trade store licence beingbeing issued so I do not know if the building was in fact operated as a store and whether it had stock inside.

In these circumstances, I would decline to make an award for trade store stock.

c. Loss of Trade Store Profit

In the plaintiff’s oral evidence, he did not give any evidence as to the trade store income. Having declined to mn awar award for stock, I also refuse to make an award for loss of profit.

d. Personal Properties

The plaintiff cldamages for loss of personal belongings. In his oral evidence, d noid not give any vany value. In the Writ, he claims K936.00 for various items. One of the lgives a similaimilar figure. I t think the sum of K936.K936.00 is unreasonable.& I awim the same.

e. Violation of Constitutional Rights

For the same reasons sons I gave in Vironica Andale’s case, I ne to make an award.

f. Exemplary Damages

For the same reasons I gave in Vironica Andale’s case, I award K200.00.

g. Interest

I award interest at the rate of 8% per annum.

h. Summary of Damages

A summary of damages I have awarded to this plaintiff is as follows:

General Damages

Trade Store building

K2,500.00

>
Personal Properties

K936.00

Exemplary Damages

K300.00

Interdiv>

K352.00

Total

K4,0>K4,088.00

I award costs to the plaintiff.

WS 2O4/93 (H) - HKENA V THE STATE

DEPENDENCY CLAIM

The plaintiff is the widow and fand first wife of the deceased. She s an action claiming ding damages for and on behalf of herself and her daughter (Janet) and on behalf of the deceased’s sewife (Lakela) and her daughter (Lucy) and on behalf of the third wife (Ake) and on behalf oalf of the old parents of the deceased. Her claim is for dependancy loss, the estate claim, compensatory damages for loss of personal properties which were burnt down, damages for breach of constitutional rights and exemplary damages.

a. Dependency Loss

I am satisfied on the oral evidence of the plaintiff, Lakela Pakena, Robert Lai, Jeffrey Abia, Phillipus Pundapia, Pulaipi, Pyara Pulapia anda and Lekela Pakena that the deceased was shot dead by the police. The me affidavit evidence ence of Dr Candy Lombage also supports caused by a gunshot wound.

I am also satisfied on t on the oral evidence of these witnesses and the affidavit evidence of Kevpala, the Senior Personnel nnel Officer of Pogera Joint Venture that the deceased was employed by Pogera Joint Venture (PJV) and earned K7,453.42 per annum. Pro this, he was employed oyed by BCL on Boungainville.

I am also satisfied on the evidence of the plaintiff and Lakela that the deceased was married to three wives by local custom. The Plaintiff and Lakela had only one female child each, namely, Janet and Lucy. The third wife is A160; Sh0; She had no children. though Ake’s dependapendancy claim is pleaded in the writ, she has not pursued her claim in court. The other witnesses sae rehe re-married onlymonther the deceased&#sed’s death and is not pursuing her her case in Court. I therefore disthe claim in m in respect o.

I am now left with the dependency claim of Het andt and her child Janet and Lakela and her child Lucy plus the dependency clf theased’s old parents, namely Pulipia Nipi (fai (father)ther) and Kaingili Pulapia (mother). Oral evidence was given by the plaintiff, Het and Pulipia Nipi. The evidence is that from a fortnightly salary of K250.00, he gave K50.00 to each of his es use and K10.00 - K20.00 to each children for their use. As for th parents,&#1s,&#1s, Pulipi Nipi he and his wifs wife given the same as the amounamount given to each wife. That means that theased ened ended up giving a total of K270 - K240.00 todepen and kept only K1ly K10.00 or so for himself.

On then the evidence, I am satisfied that these persons depended on the deceasedtheir support but the figurfigures appear to have been exaggerated. Mr Kopunye submits a reasonable allowance would be K25.00 weekly to each of the two wives, K15.00 weekly to each of the 2 daughters and K10.00 to each aged parents. In my opinion, aonablortioortionment is that whilst the deceased gave K100.K100.00 to all his dependants per fortnight, he kept more than K153.00 forelf. I would apportion the K100.00 into weekly payments for the dependants as followsllows:

Het Pakena

K25.00

Lakale Pakena

K25.00

Janet Pakena

K15.00

Lucy Pakena

K15.00

Kaingili Pulapia

K2.50

Pulapia Bin

K2.50

The age of the deceased according to the medical post mortem report is 42 years in 1993. In his PJV idication card card which is in evidence, he appears to be much older.

There is no evidence as to the age of the dependants except for Janet who was born in June 1978. I will estimaeir aom otherother related ated evidence. In respect of Het, she is the first wife and appears to be older than Lakela. She wouve married the deceased at the maturity age of 21 years. Het gave birth to Janet in 1978.&#78. She whave been married ford for tle over a year before she she conceived and gave birth to Janet. Tore in 1993, Het would hald have been aged about 37 years bat does not appear to be the case from what Lakela says.&#1s. Lakela she married the dece deceased in 1971. Lakela would have been arsyears before sore she married. That means in 1993, Lakela was 43 years old in 1993. There ie obvious coon he16 he160; Judging by t by their appearance and according to my own calculations, Het would be abbe about 42 years old and Lakela would be 37 yold. I woul would estimate the deceased’s age aage at about 47 years old.

In my report of the two children, Janet was no doubt 15 years old in 1993. Lucy being the child of the second wife would be much younger. She is doing Grade 7 in 1995. So in 1993, she was doing Grade 5. She was then 12 years old

In respect of the aged parents, the fathpearse quiet old.&#160 I would estimate his ag55 t 55 years old. Although I h16e not not seen the mother, I would estimate he at say 50 years. Th0; The normal life expectancy of Het and Lakela as well as the old parents is at 60 years.

In relation ttinge of life, Mr Kopu Kopunye has allowed nil deductions for coor contingencies in respect of each dependant. I agree with him in respect of the two children and the two aged parents. In respect of to wives, ths, they appear to be not so old as to be re-marr#160; They are mothers of daughters each and their chances of re-marriage are very good.&#1d. I do ncept their explanatianation they do not want to re-mare-marry because they want to look after their daughters. Their daughters grow up anup and go their oy to marry someone and will no longer be dependant as them.them. I wallow for 15% reductionction for Het Pakena and 20% for Lakakena on account of prospects of re-marriage.

I calc calculate dependency loss as follows:

valign="tgn="top"> valign="tgn="top">

Name of Dependant

Relationship to Deceased

Age at Time of Death of Deceased

Total Dependency Periods

Weekly Economic Loss

Factor at 3%

Het Pakena

1st Widow

42 years

18 years

K25.00

728-

Lakale Pakena

2nd Widow

37 years

23 years

K25.00

871-

Janet Pakena

Daughter

15 years

3 years

K15.00

150-

Lucy Pakena

Daughter

12 years

6 years

K15.00

287-

Kaingili Pulapia

Mother

50 years

10 years

K2.50

452-

Pulapia Bin

Father

55 years

5 years

K2.50

243-

Name of Dependant

Initial Loss

Less Contingencies of Life

Total Loss/Final Damages

Het Pakena

K18,200.00

K4,550.00 (25%)

K13,650.00

Lakale Pakena

K21,775.00

K10,889.00 (50%)

K10,886.00

Janet Pakena

K2,250.00

Nil

K 2,250.00

Lucy Pakena

K4,305.00
Nil
K 4,305.00

Kaingili Pulapia

K1,130.00

Nil

K 1,130.00

<

Pulapia Bin

K608.00

Nil

K608.00

<

b. Interest on Past Loss

I apportion part weekly loss from date of commencement of the proceedings to date of judgment at 4% per annum from part losses from 14/4/94 to 15/9/95 (17 months) is as follows:

Name

Past Loss

Interest

Het Pakena

K1,312.00

K79.00

Lakale Pakena

K1,091.00

K66.00

Janet Pakena

K1,066.00

K64.00

Lucy Pakena

K1,078.00

K70.00

Kaingili Pulapia

K196.00

K12.00

Pulapia Bin

K249.00

K15.00

c. Estate claim

As for the estate claim of K1,500.00, I equally divide up the amount between all the six dependants, i.e. K250.00 to each dependant.

d. Summary of Damages

The total damages awarded to the dependents (inclusive of interest on past loss) is as follows:

Name

Dependancy Loss

Interest on Past Dependancy

Estate Claim Loss

Total Damages

Het Pakena

K13,650.00

K79.00

K250.00

K13,979.00

Lakale Pakena

K10,886.00

K66.00

K250.00

K11,202.00

Janet Pakena

K2,250.00

K64.00

K250.00

K2,564.00

Lucy Pakena

K4,305.00

K70.00

K250.00

K4,625.00

Kaingili Pulapia

K1,130.00

K12.00

K250.00

K1,392.00

Pulapia Bin

K608.00

K15.00

K250.00

K873.00

LOSS OF PROPERTIES

In the writ, the plaintiff claims a total of K20,059.90 for loss of personal properties which includes a semi permanent 7 bedroom house (K3,000.00), 5 pigs at K350.00 each (K1,750.00) and 12 different tool boxes at K900.00 each. (K10,800.0060; The claim iaim is inclusive of the entire Pakena Pulipaya, (the deceased) family which includes the 3 wives.

The oral evidence comes from Pulipia Nipara Pulapia, Het Pakena and Lakela Pakena plus the general eral evidence of Robert Lai and Jeffry Ambi. Pyara Pulapia did not gvid evidence on specific items lost or destroyed.

Pulapia Nipi is the father of the deceased. His house was one of ses belonging to the Pulapia family but his house was different from the deceased’s h7;s house. He lost his house and hisonal belongings including traditional bilums and singsing costumes. d a pig wort worth K1,000.,000.00 but he did not say if it urnt or stolen in the raid. In the wthe plaintiff made made no reference to a house ause and properties owned by Pulipia Nipi.& The only claim is for one one semi-permanent house belonging to the deceased. I disallow his claimr this this writ. Pulapia Nipi have been inen included in WS 419/94 - Yange Langan & 58 Others v State. If he is, then I determinermine his claen I with that claim in future.

The next witnesitnesses Het Pakena and Lakela Pakena gave gave evidence as to the loss of their per properties which had been accumulated over years since thee their time in Bougainville. I do nnd their claims in r in respect of personal and household belongings unreasonable. I allow K3,6 as per the amhe amounts stated in the writ, namely:
top">

5 x Cooking pots

2 x Tea pots

width="171" val" valign="top">
22 x Spoons

K32.00

15 x Laplaps
width="171" val" valign="top">
20 x Pants
K3648.90

Name

Description

Value

Grand Total

Pakena Pulapia

Family

7 x Domattr

@div>@ K85.00 each

K599.00

4 x Single mattresses

@ K36.00 each

K144.00>

6 x Tiger head blankets

@ K32.00 each

K19/div>

10 x Rainbow blankets

@ K12.00 each

K0

10 x Pillows

@ K6.58 each

K65.00

op">

7 x Bedsheets

@ K6.50 each

K42.00

&#1v>

5 x Suitcases

@ K85.00 each

K429.00

<
6 x Copper dishes

@ K15.00 each

K90.00

@ K30.00 each

K150.00

@ K25.00 each

K50.00

20 x Cups

@ K2.20 each

K44.00

&#1v>

25 x Plates

@ K2.50 each

K62.50

@ K1.20 each

K26.40

5 x Cooking knives

@ K2.50 each

K19.00

2 x Frying pans

@ K5.00 each

K10.00

2 x Washing dishes

@ K10.00 each

K20.00

<

2 x Water buckets

@ K8.00 each

K16.00

3 x Axes

@ K16.00 each

3 x Spades

@ K14.00 each

K42.00

4 x Bush knives

@ K6.50 each

K26.00

&#iv> <

30 x Meri blouses

@ K15.00 each

K450.00

25 x Dresses

@ K12.00 each
>K300.00

@ K8.00 each

K1

3 x Clothing for children

@ K50.00 each
<150.00

@ K1.50 each

K30.00>

5 x Yakka trousers PJV

@ K28.00 each

K140div>

5 x Yakka shirts PJV

@ K24.00 each

K12/div>

2 x Safety boots PJV

@ K85.00 each

K1

Total:

1 x tools box	&div>
1 x sewing machine	K180.00
4 x toyota stout spare tyres	K280.00
Various economic food plants	K600.00	>
Total	K1,660.00	K8,217.00

Newly stocked to the value estimated	K4,000.00
Total	K4,000.00	K12,217.00

General Damages	Bush material dwelling house	K840.00
	K800.00
	Crops	K200.00
<	K1,490.00
	Trade store building	K2,500.00
	Trade store stock	K700.00
Economic Loss		K600.00
Exemplary Damages		K200.00
Interest	&#160v>	K691.00
Total

General Damages	Dwelling house	K1,740.00
	K360.00
>	Tool>Tool boxes	K800.00
	Chicken project, etc	K1,500.00
>	Pers>Personal effects	K1,744.00
	Pigs	K800.00
Exem Damages	&#1v>	K300.00
Interest	K684.00
Total >		K7,927.00

General Damages	K1,870.00
Mazda bus and tyres	K3,200.00
Exemplary Damages	K200.00
Interest	K497.00
Total	K5,767.00

“Kopunye /div>	Q.	This vehicle, William Wapen’s vehicle, is the vehicle still operating?
Lai	A.	Yes.
Kopunye	Q.	Is it still operating now?
Lai	A.	Yes, 2 weeks ago, I saw it being pushed along. It is not moving now. It is sthere.
Kopunye		Seek to amend Statement ofnt of Clai Claim to amend WS 487/94 paragraph 11 (b) and 13 (e) to show that it was a complete loss. Also to aparagraph 13 (d) (d) as to economic loss.
Court	To Kopunye
Kopunye		I do not have the N.C.R. with me now.
Court		Make the application in your written submissions and I can rule on it then as part of my deliberations.”

General Damages	Personal Properties	K4,526.00
	Bush material house	K850.00
Exemplary Damagev>
Interest		K52v>K526.00
Total	<	K6,102.00 /div>

General Damages	Tool Box	K800.00
	K2,000.00
	Personal Belongings etc	K1,500.00
Exemplary Dam/div>
Interest
Total	K5,304.0004.00

General Damages	K2,190.00
Exemplary Damages	K50.00
Interest	K211.00
Total	K2,451.00

General Damages	H60 Dwelling House	K5,000.00
<	Trade Store Building	K1,500.00
	Trade Store Stock	K700.00
&#/div>	House “Cook”	K100.00
	House “Pig”	K200.00
	Personal Assets	K2,400.00
	K300.00
	K600.00
Exemplary Damages	Kdiv>K300.00
Interest		K1,046.00
Total	width="101" valign="ign="top"> K12,146.00

Het Pakena	K25.00
Lakale Pakena	K25.00
Janet Pakena	K15.00
Lucy Pakena	K15.00
Kaingili Pulapia	K2.50
Pulapia Bin	K2.50

Name of Dependant	Relationship to Deceased	Age at Time of Death of Deceased	Total Dependency Periods	Weekly Economic Loss		Factor at 3%
Het Pakena	1st Widow	42 years	18 years	K25.00		728-
Lakale Pakena	2nd Widow	37 years	23 years	K25.00		871-
Janet Pakena	Daughter	15 years	3 years	K15.00		150-
Lucy Pakena	Daughter	12 years	6 years	K15.00		287-
Kaingili Pulapia	Mother	50 years	10 years	K2.50		452-
Pulapia Bin	Father	55 years	5 years	K2.50		243-
Name of Dependant	Initial Loss	Less Contingencies of Life	Total Loss/Final Damages
Het Pakena	K18,200.00	K4,550.00 (25%)	K13,650.00
Lakale Pakena	K21,775.00	K10,889.00 (50%)	K10,886.00
Janet Pakena	K2,250.00	Nil	K 2,250.00
Lucy Pakena	K4,305.00	Nil	K 4,305.00
Kaingili Pulapia	K1,130.00	Nil	K 1,130.00		<
Pulapia Bin	K608.00	Nil	K608.00		<

Name	Past Loss	Interest
Het Pakena	K1,312.00	K79.00
Lakale Pakena	K1,091.00	K66.00
Janet Pakena	K1,066.00	K64.00
Lucy Pakena	K1,078.00	K70.00
Kaingili Pulapia	K196.00	K12.00
Pulapia Bin	K249.00	K15.00

Name	Dependancy Loss	Interest on Past Dependancy	Estate Claim Loss	Total Damages
Het Pakena	K13,650.00	K79.00	K250.00	K13,979.00
Lakale Pakena	K10,886.00	K66.00	K250.00	K11,202.00
Janet Pakena	K2,250.00	K64.00	K250.00	K2,564.00
Lucy Pakena	K4,305.00	K70.00	K250.00	K4,625.00
Kaingili Pulapia	K1,130.00	K12.00	K250.00	K1,392.00
Pulapia Bin	K608.00	K15.00	K250.00	K873.00

Name	Description	Value	Grand Total
Pakena Pulapia
Family	7 x Domattr	@div>@ K85.00 each	K599.00
	4 x Single mattresses	@ K36.00 each	K144.00>
	6 x Tiger head blankets	@ K32.00 each	K19/div>
	10 x Rainbow blankets	@ K12.00 each	K0
	10 x Pillows	@ K6.58 each	K65.00
op">	7 x Bedsheets	@ K6.50 each	K42.00
&#1v>	5 x Suitcases	@ K85.00 each	K429.00
<	6 x Copper dishes	@ K15.00 each	K90.00
	@ K30.00 each	K150.00
	@ K25.00 each	K50.00
20 x Cups	@ K2.20 each	K44.00
&#1v>	25 x Plates	@ K2.50 each	K62.50
	@ K1.20 each	K26.40
	5 x Cooking knives	@ K2.50 each	K19.00
	2 x Frying pans	@ K5.00 each	K10.00
	2 x Washing dishes	@ K10.00 each	K20.00
<	2 x Water buckets	@ K8.00 each	K16.00
	3 x Axes	@ K16.00 each
	3 x Spades	@ K14.00 each	K42.00
	4 x Bush knives	@ K6.50 each	K26.00
&#iv> <	30 x Meri blouses	@ K15.00 each	K450.00
	25 x Dresses	@ K12.00 each	>K300.00
	@ K8.00 each	K1
	3 x Clothing for children	@ K50.00 each	<150.00
	@ K1.50 each	K30.00>
	5 x Yakka trousers PJV	@ K28.00 each	K140div>
	5 x Yakka shirts PJV	@ K24.00 each	K12/div>
	2 x Safety boots PJV	@ K85.00 each	K1
Total:

Loss of personal properties	House	K2,000.00
	K2,919.00
	top"> Trees and crops	K150.00
	Animals	K1,750.00
>Exemplary Damages		K300.00
Interest	&#/div>	K671.00 /div>
Total	<	K7,790.00

Name	Dependancy Loss(including estate claim)	Compensatory Damages	Final Damages
Het Pakena	K13,979.00	K2,500.00	K16,479.00
Lakale Pakena	K11,202.00	K2,500.00	K13,702.00
Janet Pakena	K2,564.00	K1,395.00	K3,959.00
Lucy Pakena	K4,625.00	K1,395.00	K6,020.00
Kaingili Pulapia	K1,392.00	Nil	K1,392.00
Pulapia Bin	K873.00	Nil	K873.00

National Court of Papua New Guinea

Lagan v The State [1995] PGNC 32; N1369 (15 September 1995)