National Court of Papua New Guinea

There are a number of undisputed facat worth mentioning. 160; It ised that on the 2the 23rd of April 1994 a group of fifteen to twenty policeman under the command of Chief Inspector Kasieng went to Kopung Village in pursuit of a suspect. There were about fouice vece vehicles used in the raid. While in the village police received information that a large quantity of beer was kept in the trade store owned by thintiff. That upon receipt of such information policemlicemen forced open the door of the building got inside and confiscated cartons of beer. Disputed facts includial oial of police returning in the afternoon of the date of the incident, denial of burning the building owned by the plaintiff and several other structures. The value of the stock on hand was said by the defence witness to be much less than what the plaintiff is claiming.

From the evidence in support of this claim and from the evidence for efence, this Court is satisfied on the balance of probabiliability that on the material time and date Chief Inspector Kasieng and a group of policemen entered the Kopung village in pursuit of a suspect. I am further satisfiat thet the first defendant and his men raided the trade store confiscating a quantity of beer whose owner is not established by the evidence. I am furtheisfiet not only only beer was removed that morning but some some store goods were also removed along with the beer. It is overwngly lished by d by the plaintiff’s evidence from which I am more than satisfied that that policemen returned to the Kopung Vilthe second time on the same date at about 4-5 pm and indiscriminately burnt the trade storestore building owned by the plaintiff together with several other houses owned by persons who have not claimed or probably have claimed but were never mentioned in this proceedings. I am also sati that policeolice force members engaged in this operation were and are employed by the second defendant who by virtue of S. 1 (1) (9) and 1 (4) of the Wrongs (Miscellaneous Provisions) Act Ch. No. 297 is clearly liable for the misdeeds of its agents.

ASSESSMENT OF DAMAGES

The plaintiff claims under three general heads, that for general and exemplary damages and economic loss.

GENERAL DAMAGES

Under this head, the plaintiff claims for the loss of the trade store, stock on hand estimated to be in the vicinity of K3,500.00, and a cash sum of K4,600.00 left lying around in the building at the material time. The value of the bug is beis being put at K12,700.00. Paulus Tumbe gave oral evidence to the estimated value of the building saying that the group of young people which was latter incorporated into a businroup ed K12,700.00 tow0 towards the building. The remaining money want tent to buy stock fock for the trade store when it was newly established. Although one Martii a Dist District Business Development Officer seem to say in his type-written note address8220;TO WHOM IT MAY CONCERNNCERN” that the value of the building was worth K12,700.00, I cannot accept his version basically on the basis that that hand written note cannot be accepted as evidence as it is addressed to the world at large and of course unless it is in a form of affidavit. If I am going to accept Paulus Tumbe’s view that his group raised a total of K12,700.00 and spent some of it to build the building and some money was left over to buys stock then certainly the value of the building have been less than what that the plaintiff now claims. I accep evidence for the pthe purpose of placing an independent assessment on the value of the trade store building.

Clearly when one person causes harm of any type to another be it to propertpersonal injury or financiaancial loss, the normal remedy which the law gives (if in the circumstances of the case, it gives a right of action at all) is a right to recover damages. General ds is presumed by d by law to flow from the wrong or damage complained of. The law on the natureamageamage has been stated from time to time in varying terms by eminent judges both locall elsewhere. Viscount ount Dunedin sa A in Admiralty Comrs v SS Valeria [1922] 2 A.C 242 at 248:

“The true method of expression, I think is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as, money can do so the loss which he has suffered as the natural result of the wrong done to him.”

Another well-known statement on the law on damages to property was made by Lord Blackburn in the case of Livingstone v Rawyards Cool Co. [1880] UKHL 3; (1880) 5 App. Cas. 25 at 29:

“Where an injury is to be compensated by damages, in settling the sum of money to be given...you should nearly as possible get at the sum of money which will put the person who has been injured...in the same position as he would have been in if he had not sustained the wrong.”

Thus it basically means that in cases of damages done to goods or property of any kind, the plaintiff is entitled to recover damages to the extent to which the value of the chattel has been reduced. This may mean the value of the damaged property could usually be ascertainable by reference to costs of repairs if repairs have been done. There is of cour rule of l of law requiring a plaintiff to do or carry out rs prior to claiming. #160; In the in case no repo repairs have been carried out and as can be seen from the current trend of lathe vast majority of claimslaims against the State the judge is faced with the most hardest task of placing a value on property where no independent witnesses have been called or where there is no independent assessor. The problcomes more acute cute where the vast majority of Papua New Guinean medium entrepreneurs take the risk of not insuring their small scale businesses. When al busman looses some some property like in the instant case case, it takes ages for that business to recover due to lack of finance.

What is essential is that the plaintiff cannot recover more than the value of his or her her loss or destroyed property: Darbishire v Warran [1963] EWCA Civ 2; [1963] 1 WLR 1067.

The case of Kofowei v Siviri [1983] PNGLR 449 clearly sets out the role of policemen as agents of the State and the State’s liability in respect of wrongful actions by police in the name of law. In the instaaim the State tate is liable for the wrongful action of the policemen under the command of Chief Inspector Kasieng in the way thrnt the trade store building owned by the then plaintiff. Havinuded to the fact fact fact that the value of the building would have been much less than what the plaintiff now claims and the fact that the members of business group collected and donated a tsum of K12,700.00 a greatereater proportion of this money was spent on labour and the building materials so as transportation to and from Kaupena in the Southern Highlands Province. That piecevidence from Paum Paulus Tumbe and Ikai Gikema essentially means that, the value as placed by the plaintiff cannot be accepted. In consideration of the value, I would exercise my discregiven this Court under O. 1 O. 10 rr 17 & 18 of the National Court Rules to place the value of the trade store building to be at 0.00.

Whilst I am satisfied on the basis of all evid evidence given in support of this claim that some stock was either looted by policemen on the scene or destroyed by fire the afternoon on the date in question, I am not equally satisfied by the value being placed by the plaintiff at K2,500.00. Evidence shows most goods oods were consumable items. Corroborative evidence iuirequired to substantiate the value claimed. There is no evideo supportpport that figure. Fro evidence of the tiff aiff and the defe defence, I am satisfied that there were some goods. How the gohe goods would nuld not have valued that much.& Thera danger in the vthe valuation of stocked goods when one isne is faced with estimation without proper accounting evidence. In rt of ations Woods J sa J sa J said in John Tuink and Ors v The State & 4 Ors (1994) N1272:

“John Tiunk Salamon claimr the loss of houses and a trade store, loss of personal possessions and trade store goods oods and damage to a vehicle. He is claiming for loss ofss of business profits since the incident. t I am satisfied on the bahe basis of his affidavit that thessment is reasonable with respect to houses and buildings, and personal possessions, and aand also the vehicle damaged, there is onect of trade store goods whis which I feel need more evidence and this is interrelated with the claim for loss of profits. Inclun the trade store gooe goods is K12,785.00 for stock of cigarettes. That seems to be a large item for a trade store and su more than just a mere convenience village trade store. Whilst the Cmay be lenielenielenient with strict evidentiary matters willage claims once you are claiming for what are major econoeconomic activity enterprises the Court is entitled to insist on proper eve in the nature of ledgers gers and account books and even taxation returns to comply with the modern laws... The Court cannot a judgemedgement based on mere assertions or assumptions.”

In the instant case the terms of the above quotation is so when the plaintiff being a business group incorporated underlaws of this nati nati nation was required by the terms of the Business Groups Incorporation Act to properly keep records of their accounts. There is no eviden supportpport the propositiat a legally operating stor store was licenced or some confirmation from some other sources other than that of Martin Kepi to suggesthe plaintiff was operating legally. The law is simplyimply that a plaintiff must prove his damages in accordance with established principles and according to the onus and standard of proof in the civil standard that of “proof on the balance of probaies”. Lord Godd Goddard Ce said:said:

“Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damages; it is not enough to write down particulars and so to speak throw them at the head of the Court saying ‘This is what I have lost I ask you to give me these damages’. They havprove it.”

Bonham v Hyden Park Hotel Ltd [1943] 64 TLR 177 at 178.

In Albert Baine v The State (1995) Unreported N133/95 Woods J said:

“The Court must demand more corroboration of such auch a value and cannot go merely on the talk of the plaintiff. By an if a car is damaged aged in an accident a court requires an appropriate valuation from a refutable car dealer, if a house in to destroyed it is usually assessed by an insurance assessor. Whi am not expectingcting ting an insurance assessor to assess village raid destruction, the Court must have some independent evidence to support estimates of value, such as a coronial inquiry, ece from people in authorityority like District Officers who knew the area and who were called to visit the sight immediately after an incident.”

Thus in the claim before me, Martin Kepi’s letter addressed to ‘TO WHOM IT MAY CONCERN” cannot be relied on for two reasons. First it is not eve and send secondly, it is not known if the said Martin Kepi come from the area. I cannot thereaccept the pthe plaintiff’s valuation of the stock on hand. I place the value fock on hand at K1,000.00.

The third item claimed under general damages is the loss of cash in the sum of K4,600.00. The witneo ever mentioned oned the loss of this amount is Paulus Tumbe. leges that that this sum wsum was either removed by policemo conducted the raid or was destroyed by fire when police returned in the later part of thef the day to set fire to the building.&#16e would wonder why was so l so large an amount of cash kept in the store when such sum would have been expected to be banked away for security sake. I would hapected that a su a sum of money would have been claimed as monies raised from the sale of goods in the trade store. But stranget is the K4,6004,600.00 cash was supposedly kept in the store for buying coffee cherries on a daily basis for purposes of reselling it to established coffee factories. The question arises as e cthe credibility of what Paulus Tumbe testified in respect of this cash sum.

Certainly by the time police left Kopung village in the morning, evidence by the plaintiff’s witnesses and even by the only defy defence witness establish that the door to the trade store was by then already damaged. Had Pauluse been concernederned about the cash sum he would have immediately called those nearby and even his witness to check for the cash amount. No evidence was callethis this effect and yet Paulus Tumbe says that he expects that sum to have been either stolen or destroyed by fire. In an unred judgement that that of Andrew Polipila & Ors v The StS 113/96 at 9 Akuram J said said:

“I will not consider the K1,600.00 kept by the plaintiff in the house for his son&#821ride price. I am of t of the viat peop people must learn to keep such large amounts of money in the banks and not in the house. There is simply no independent evidence to support the plaintiff’s claim.”

I accept part of Mr Kumura’s submission that the Courts are generally reluctant to award damages for cash claims unless there is of course cogent and independent evidence to substantiate such claims. Paulus Tumbe claiat this chis cash sum was kept in the store for purposes of purchasing coffee. Unless there wasence from from an independent witness, I would simply refuse that part of the plaintiff&#82claim.

The plaintiffntiff also claims the value of two (2) coffee scales and two coleman pressure lamps. The value placed by laintiaintiff on the two coffee scales is K600.00. No evidence ead to establitablish the original price of the items.&#160 was there evidence lead to establish how much was paid for the two coleman pressure lamps.amps. Thesure lamps are being v ng v at K144.00. I am notm not prepared cepaccept those prices valued by the plaintiff. On the two coffales I plac place a vaf K500.00 for both and for the two pressure lamps the CourtCourt places a value of K90.00 for both.

There are other sundry items the plaintiff claims for. Mr Kumubmitted at page sage sage six (6) of his written submissions that the Court must not entertain this part of the plaintiff’s claims because according to Mr Kumura these other items were not the property of the plaintiff. With respect my view is that these items were destroyed in the same fire and these items are also particularised in the particulars of claim. I cannot see aasons why I hy I should not also place a value of such items. Taintiff claims K1,620.00.0.00. ourt values these various ious items at K500.00.

On economic loss the plaintiff claims K25,500.00. Unfortunateere ie morevideevidence to support so large an amount.ount. First there ievidence to e to e to support how much money the plaintiff aking a month from the trade store while the trade store was in operation. It is assu assumed by witsesses for the plaintiff thnthly profits made from opem operating the trade store they would have made K1,500.00. The plaintiffcally claims aims for the m from May 1994 to September 1995 some 17 months times K1,50K1,500.00 amounts to K25,500.00. Whilst os, there is an alln allegaty the Registrar of Companies that the plaintiff had failed iled to lodge statement of its assets and liabilities pursuant to S. 28 (2 of the Business Groups Incorporation Act (see Ann. “8220;D”). Despite this, loss oiness ness profits was occasioned to the plaintiff’s conduct of its business affairs for which I am entitled under the Rules to place a value on economic I therefore place a value of K500.00. For the the seventeen s wths while the plaintiff was a going concern the value placed by the Court is simply multiplied by the seventeen (17) months amounts to K10,200.00.

Finally for Constitutional breach do Paulus Tumbe who was call called as a witness for the plaintiff claims K1,000.00. Quite appar the plaintiff tiff is not Paulus Tumbe and thus I must refuse this head of his claims. He coul by himself.