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Goodenough v The State [2001] PGNC 51; N2157 (21 December 2001)

N2157

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 524 OF 1997

BETWEEN:

PETER GOODENOUGH
Plaintiff

AND

THE STATE
Defendant

WAIGANI: SALIKA, J
21 December, 2001

CIVIL CLAIM – Claim for Damages out of Bougainville Conflict – default judgement – plaintiff lost property – State not wholly responsible – Conservative Award.

Counsel:

Ian R Molloy for the Plaintiff

John S Kawi for the Defendant

The plaintiff’s claim in his amended statement of claim is for damages in respect of loss and destruction caused to his property located at Itakara, Bougainville on or about 18 October, 1992. The relevant parts of this Amended Statement of Claim reads:-

3. On or about the 18th October, 1992, unknown members of the Papua New Guinea Defence Force (thereinafter PNGDF) unlawfully entered upon and occupied the land known as Itakara situated adjacent to the Buka Road and know in part as Portion 290.
4. The land described in paragraph 3 herein and premises thereon and "the equipment" thereon were used by the Plaintiff to carry on his business a civil engineering contractor.
5. Subsequently to the occupation of the land described paragraph 3 herein all of the "the equipment" particularised in paragraphs 28 and 13 herein was either unlawfully converted by the PNGDF to its own use, destroyed by it; or allowed to deteriorate to a state of worthlessness, or given away to third parties without the authority of the Plaintiff and without just compensation being paid. Full particulars of the aforesaid mention matters are set out hereunder.
6. In the premises the Defendant is variously liable for the torts and or constitutional breaches committed by its servant or agent, the PNGDF, in respect of "the equipment".
7. Further and alternatively if the PNGDF was by law entitled to enter upon the Plaintiff’s land and use "the equipment" then the PNGDF was under duty to keep the equipment and redeliver it to the Plaintiff on demand in the same good order and condition, excepting normal wear and tear, as it was when the PNGDF entered into occupation of the said land commenced to use the Plaintiff’s equipment.
8. The PNGDF failed to redeliver the Plaintiff’s equipment to him and failed to keep it safely, particulars of which are set out herein.
9. Further and alternatively pursuant to Constitution Section 53 of the Constitution of PNG the plaintiff was entitled to just compensation for the use of his land and the equipment thereon and or their loss resulting from the acts or omissions of PNGDF.
10. Despite demand neither the PNGDF nor the State have offered to pay any compensation at all.
11. The Plaintiff claims compensation pursuant to Constitution s.57 and 58 in the sum set out in paragraph 28, herein supported by particulars therein.
12. Further and alternatively the plaintiff was the lawful owner or entitled to possession of all "the equipment" particularised in paragraph 28 herein.
13. On or about the 18th October 1992, and on various dates thereafter and continuing to the date of the filing of this Writ the PNGDF unlawfully and without the consent of the plaintiff took various items of "the equipment" from the plaintiff’s land described as Itakara and used them as if they were its own.
14. In the premises the Defendant of by the PNGDF has converted "the equipment" to its own use.
15. At the date of the conversion the value of "the equipment" itemised in paragraph 13 herein was K1,534,520.00
16. Further and alternatively if by law, the PNGDF, was permitted to occupy the land of the plaintiff and use his equipment particularised in paragraph 13 and 28 herein, the PNGDF became bailees of the plaintiff’s equipment so particularised, and were under a duty to keep "the equipment" safely and to redeliver them to the plaintiff on demand in the same good order and condition as they found "the equipment".
17. The plaintiff upon entering upon the said land on 17th November, 1994 discovered the "the equipment" had either been removed to locations not known to him, destroyed to situ, or permitted to deteriorate to the point of worthlessness.
18. Further and alternatively the Plaintiff is the owner and entitled to possession of "the equipment" particularised in paragraph 28 herein.
19. On a date unknown to the plaintiff but after 18th October 1992, the Defendant by the PNGDF unlawfully came into possession of "the equipment". The Defendant thereafter used "the equipment" as if it was its own equipment, or alternatively detained it and kept it from the plaintiff.
20. In the course of such use and or detention, by reason of a failure to properly maintain or secure "the equipment", it became worthless.
21. In the premises the PNGDF converted "the equipment" to its own use. By reason of the conversion the Plaintiff has suffered loss and damage.
22. Further and alternatively the plaintiff is the owner and entitled to possession of 163 prefabricated, Logan Homes in knock down form situated upon the land described in paragraph (3) herein.
23. On or about 17th November 1994, the PNGDF negligently permitted the said Logan Homes to be destroyed by fire, the said homes being stacked stored beneath corrugated roofing iron.
    

PARTICULARS OF NEGLIGENCE

24. The defendant was negligent in that it:
    • (a) failed to keep the Plaintiffs land and the environs close to the stacked Logan Homes, free from bush.
    • (b) Failed to prevent persons unknown from lighting fires on the Plaintiff’s land, especially in the environs of the Logan Homes;
    • (c) Failed to take any measures at all to extinguish the fires which destroyed the said Logan Homes which fires were lit in the proximity of the said Logan Homes.
25. In the premises the Defendant by its servants or agent the PNGDF was guilty of a trespass to the said Logan Homes or alternatively was guilty of a negligently permitting the said Logan Homes to be destroyed.
26. By reason the said trespass and negligence the Plaintiff has suffered loss and damage.

Value of the Logan Homes: K8,150,000 – K10,187,500.00

27. (a) Further and alternatively, pursuant to s.53 of the Constitution of Papua New Guinea..."possession may not be compulsorily taken of any property except in accordance with the provisions of Constitution S.53(1)(a) and (b) and s.53(2)."
    • (b) The plaintiff alleges that the facts matters and circumstances extant on or about October 1992 in respect of the Plaintiff’s properly did not give rise to any of the contingencies set in Constitution s.53(5).
    • (c) In the premises the PNGDF entry on or about the 18th October 1992 upon the Plaintiff’s land described in paragraph 3 herein; the use of; the destruction and or detention of the plaintiff’s equipment in the circumstances amounted to a compulsory taking of his property, not pursuant to any Organic Law or Act of the Parliament, and was so done without any provision for just compensation
    • (d) In the premises the Plaintiff is entitled to seek enforcement of his rights vide Constitution s.57 and if further entitled to reasonable damages including exemplary damages pursuant to Constitution s.58.
28. AND THE PLAINTIFF CLAIMS:
    • (a) Damages for trespass and negligence.
    • (b) Damages for breach of bailment and conversion.
    • (c) Just compensation pursuant to constitution S.52(2).
    • (d) Damages and exemplary Damages pursuant to constitution s.57 and 58. A declaration that the PNGDF appropriation of the Plaintiff’s property was in the circumstances unlawful.
    • (e) An order that the Plaintiff be allowed back on to his property known as Itakara.
    • (f) An order the PNGDF return the plaintiff’s plant and equipment forthwith which is still in its possession, providing that such plant and equipment may be retained under a valid law proof or which will be upon the PNGDF.
    • (g) Interest pursuant to Statute.
    • (h) Costs.

The claim is for an amount in excess of K26,000.000.00

Liability has been determined with the entry of a default judgement on the 10th October 1997.

McGregor On Damages paragraph 9 at page says:-

"The object of an award for damages is to give the plaintiff compensation for the damage, loss or injury he has suffered.

The Plaintiff said he suffered damage and loss and endeavored to prove the extent of the damages and loss by calling 4 witnesses including himself. He has an obligation to prove his loss with as much certainty and particularity as is reasonable. In the Australian case of Ray Teese Pty Ltd v Syntex Australia Limited [1998] 1 Qd R 104, the Court said:

".... That in order to obtain an award for damages from a Court, a party was required to prove its loss with as much certainty and particularity as was reasonable".

In Bonham Carter v. Hyden Park Hotel Ltd (1948) 64 T.L.R. 177 at 178, LORD GODDARD CJ said:

"Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damage, it is not good enough to write down particulars and, so to speak, throw them at the hand of the Court, saying; "this is what I have lost, I ask you to give me these damages". They have to prove it.".

I adopt these statements as I am of the view that they are reasonable and logical and should be applied by the Courts in Papua New Guinea. Every plaintiff who wishes to be put n the same position as he would have been in had the tort not been committed has an obligation to prove his claim. He has to call evidence relevant to prove his damage. If he fails to provide the relevant evidence his claim is likely to fail.

The first part of the Plaintiff’s evidence was obtained in 13 March 2001 and took some months before it was completed.

The first witness he called then was KEITH JAMES HOOPER. This man was formerly employed as a company manager but is now a salesman. He was Hastings Deering Branch Manager in Arawa from 1986 to 1989. He had been employed by Hastings Deering as Parts Manager and later Branch Manager. He said he was familiar with the type of operation the plaintiff had. He said he knew the plaintiff through his business dealings. This was because the plaintiff operated a civil engineering construction business. He had heavy duty equipment and was in competition with Hastings Deering in Bougainville. He gave evidence that he on occasions bought spare parts for their heavy duty machines from the plaintiff’s operation. He gave evidence of the plaintiff keeping an inventory of all the heavy duty machines parts and said that he was familiar with the value of such parts. He also gave evidence of the plaintiff buying some heavy duty machines from him when he was Branch Manager at Arawa. He recognised some of the machines as the ones he sold to the plaintiff. The witness was able to say that the plaintiff’s operation was a big one. He was self sufficient. He said the plaintiff often bought in bulk from Australia and Singapore.

The next witness was Paul Ryan. The witness was employed by the plaintiff at its engineering and construction plant at Itakara in Bougainville. He started working for the plaintiff in 1987 as workshop superintendent. His duties among other things was ordering parts for the heavy duty machinery and plant. He gave evidence that the parts he ordered were between K80,000.00 to K200,000.00. he finished working for the plaintiff at the end of 1989 when the hostilities on Bougainville became more volatile and a lot of people were evacuated. He was referred to the photographs of the plant and equipment parts and he agreed that some of the parts were second hand but still in very good. He also gave evidence that because of the size of the plaintiff’s operation it Itakara the operation was self sufficient. He also gave evidence of the type of accommodation the plaintiff provided for his employees. He said the plaintiff provided accommodation for all his employees which were of high quality. All these were also lost or damaged as a result of the Bougainville uprising.

The witness gave evidence that caterpillar parts were usually ordered from America and from Singapore together with other major items like track rollers, cutting edges, ground engaging tools, buckets and blade repair, hydraulic cylinders, hoses and fittings. The equipment in stock comprised of D3 to D9 bulldozers, 920 to 980 loaders graders, backhoes, P&H Cranes, truck cranes, excavators, rollers, compaction equipment, Mack off road dump trucks, Isuzu 6X 4 and 6X6 and Toyota trucks, Toyota land cruisers, Toyota Double cabs, buses and light vehicles.

There was also a complete bitumen spraying plant, computerized spray tank, manual chocherel chip spreaders, hydraulic power chip spreaders with electric air operated control, rollers, mechanical brooms, tar pots, heater blowers, storage tank for bitumen, cutter, diesel and kerosene and stockpit bitument in drums. The workshop was equipped with all necessities of a workshop and well stocked and maintained.

The next witness was the plaintiff himself who gave evidence with much difficulty caused. He has recently had a mild stroke and as a result of that his ability to speak properly has been impaired. Unless one gets used to hearing him will one comprehend what he is saying. Under those circumstances he gave evidence of his business operation in Itakara and Arawa. His evidence is that he carried on business as a civil engineering contractor. His operation was big in that it kept a big inventory of machinery and spare parts. In placing monetary value to the loss of the machinery and equipment the plaintiff from his own knowledge estimated the value of such machinery and equipment. He was not able to produce any receipts of any of the machine or equipment. He however said the figure came from "his head" because of his long experience in dealing with those types of machinery and equipment. He could not produce any tax or business returns from his business accounts to show how much his business was worth. He also gave evidence that many of the plants and heave equipments were used. The plaintiff also gave evidence of buying Logan homes from the Solomon Islands. A few of those homes were erected but most were still in containers.

The plaintiff then produced David Itoa. This witness valued the plaintiff’s properties in particular heavy equipments parts and plant. He was given a list of heavy equipment parts or machines. The plaintiff had done his own valuation from his own experience and from his own "head". The witness then was given the list by the plaintiff with his own valuation. I note that the witness did not do a physical inspection of the equipment before making his evaluation. In some cases the witness relied on photographs of the equipment and plant to make valuation.

The next witness the plaintiff called was Mr Scott Hay McKenzie. The witness too was asked to place values on the equipment and plant which were said to have been damaged and stolen. He too was given a list of the equipment and plant and asked to assess the value of each of the items. He did not carry out any physical inspection of the equipment before valuing them. He too was given photographs of the equipment before he made the valuations.

The plaintiff then called Geoffrey John Boyant, the agent of Logan Homes between 1992 and 1993. Logan Homes are pre-fabricated, panelised homes. His evidence was that the Logan homes were being sold for $52,000.00 Australian. He did not sell any homes directly to the plaintiff.

From all these evidence I am satisfied that the Plaintiff did loose some plant and equipment machinery and houses during to Bougainville crisis. I have no doubt in my mind of that happening. The plaintiff’s claim as it appears from the Statement of Claim is pleaded in conversion, trespass to goods, breach of duty as a bailee and breach of s.53 of the Constitution.

The Supreme Court in the Government of PNGBC v BARKER (1979) PNGLR 53 cited with approval the decision of the High Court of Australia in Butler v Egg and Egg Pulp Marketing Board [1966] HCA 38; (1966) 114 CLR 185 wherein the Court said that the principle is that the injured party should receive compensation in a sum which so far as money can do so will put him in the same position as he would have been in if the tort had not been committed. In most cases of conversion this usually will result in the injured plaintiff recovering the full value of the property converted. However the plaintiff still has the obligation to prove his loss with as much certainty and particularity as is reasonable. He has to prove his loss.

I have alluded to the evidence earlier. The plaintiff claim is based on 1992 valuation of the items. His valuations are summarised as follows:

(a) plant and equipment K8,591,480.00
(b) logan homes AUD$ 6,683,000.00
0.75cents for K1.00
(c) other homes destroyed K 445,000.00

These figures were arrived at from the various witnesses called by the plaintiff who gave their opinion on what they thought the value of the items would be. While this form of evidence may be admissible and relevant it would have been better to produce documentation to prove ownership and registration of any of the machinery, equipment, vehicles and plant. Evidence was that all documents were destroyed because of the crisis. The plaintiff could have obtained documents from either his accountants, insurance companies who may have insured the properties and the Motor Vehicle Insurance Trust. Those documents could have been subpoenaed. The onus was on the plaintiff to produce the relevant evidence.

Furthermore, it would have been preferable for the plaintiff to have obtained current valuation of the plant and equipment and trucks and vehicles from the appropriate dealers who would have valued the equipment machinery and the vehicles by reference to age and condition and serviceability of the items. Moreover the plaintiff did not provide appropriate business and income tax returns, company returns and other certified records of the value of property to verify the nature of his business operations as well as the existence of the plant and equipment together with the homes which were destroyed.

I echo the sentiment of Woods J in the case of Komaip Trading v The State (1995) PNGLR 165, where he said:-

"Normally, of course a business of this size would have assessed its worth by an insurance cover, duly confirmed by an insurance assessor, which would be the normal guide for any loss of destruction like this. In the absence of something like that, the Court can only make a conservative assessment".

What the plaintiff has done in this case is that he wrote down various items he lost in the schedule and got witnesses who knew his operation and who knew what type of items he had in his workshop and gave estimate valuations of those items to the Court. I am mindful of the fact that the evidence of the value of the plant and equipment was given by DAVID HOA and SCOT HAY-MACKENZIE, both of whom have had extensive experience in valuing, buying and selling of heavy equipment, trucks and other vehicles similar to the ones lost by the plaintiff. The concern is that they were shown photographs of what the plaintiff lost and were given the schedule with the plaintiff’s own valuation. The two witnesses simply either agreed with or inflated the plaintiff’s valuation after viewing the photographs. They did not have the benefit of physically inspecting the plant and equipment. While I acknowledge the evidence of HOA and HAY MACKENZIE and their combined extensive experiences so stated I am mindful that those estimates are mere estimates only. This of course does not relieve the defendant from paying for the plaintiff'’ loss. The common law case of Chaplin v Hicks (1911) 2KB 786, Lord Justice Vaugham Williams at 792 stresses that point when he said:

"The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages".

This simply means that the Court will have to do the best it can to arrive at a probable value of the plant, equipment and vehicles. See Biggin v Permanite (1951) 1 KB 422 and Komapi Trading v The State (1995) PNGLR 165.

The valuation by HOA and HAY MACKENZIE for the plant and equipment, including the television installation and the Besser Block machine amount to about K8,591,480.00. That figure represents the average between the two men. In the absence of proper receipts and documents and the overall circumstances prevailing in Bougainville at the time the plant and equipment could have been gotten at by the Bougainville Revolutionary Army or the Bougainville Resistance fighters. Either way the equipment probably would have been lost or destroyed because Bougainville then was at "War". In this case he blames the State for his losses. Anybody could have walked off with the equipment. Considering those circumstances, I will make a conservative award of K5,000,000.00 for the plant and equipment.

LOSS OF HOUSING

In relation to loss of buildings and the Logan homes which were built and those not built, Geoffrey Bryant gave evidence of those. He is a qualified builder with about 38 years experience in the building industry. He gave evidence that the 1992 value of a basic two bedroom home unassembled with hardwood flooring and solar hot water systems and panels cost AUD$ 55,000.00. He also said a house with basic three bedroom unassembled with hardwood floorings and solar hot water systems and panels cost AUD $ 68,000.00

He however valued the homes in Papua New Guinea as approximately two thirds their new value and gave the 2 bedroom house a value of AUD $ 36,700.00 while the 3 bedroom house he value it at AUD$ 45,300.00.

Evidence was that most of the Logan homes had not been assembled or erected. They were still in containers. Again there is no other documentary evidence relating to these Logan Homes. No building plans of the Logan homes were produced. Furthermore evidence is that the Logan homes were bought from the neighbouring Solomon Islands. Invoices from the Solomon Islands could have been obtained to ascertain their purchase price. Again the Court is left to come up with some conservative estimates. The plaintiff claims AUD$ 6,683,000.00 for the logan homes and K445,000.00 for other housing which were destroyed.

I allow for the fact that most of those logan homes were still in containers and not assembled. If they were left in that position they may have deteriorated to an extent they may not have been useable or they may have gotten into the hands of the BRA or to looters. I can understand the fact that unlike the vehicles, the machines and plant and equipment that the PNG soldiers may have used, there is no evidence that the PNG soldiers used or erected those houses for the use of the soldiers or for the use of anybody else. Liability however has been determined so the Court has to make an award for the lost items. In these circumstances I will award K1,000,000.00 for the Logan homes and K200,000.00 for the other houses. I have decided that I will make every award in the Papua New Guinea Kina because it is convenient.

In total I award:

(a) Plant and equipment K5,000,000.00
(b) Logan homes K1,000,000.00
(c) Other buildings K 200,000.00
(d) Television Disk K 23,000.00

I have considered exemplary damages but I consider that this case is not an appropriate case to award exemplary damages because the items were in a "war zone" and anybody could have stolen or destroyed them.

INTEREST

I have considered interest at commercial interest rate but I do not consider this to be an appropriate case to award interest at a commercial rate. The reasons are that this equipment and houses were in Arawa. There is no evidence that the plaintiff had plans to move them out of Arawa. He simply left them there in Arawa. It is common knowledge that Arawa was a "war zone" during the height of the conflicts in Bougainville. Those equipment and houses were not being used for any commercial purposes at the time.

The second reason is that, the plaintiff did not plead interest at commercial rate and so he cannot now claim interest at a higher rate than the normal 8%.

The total awarded to the plaintiff is:-

(a) K6,223,000.00
(b) Interest at 8% from time of filing of the writ to date of judgement.
(c) Cost are awarded to the plaintiff including certification for overseas counsel.

_____________________________________________________________________
Lawyer for the Plaintiff: PATO Lawyers
Lawyer for the Defendant: Solicitor General