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Nari and Nari v Independent State of Papua New Guinea [2004] PGNC 14; N2769 (5 March 2004)

N2769

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1177 OF 2001

BETWEEN

PAUL NARI & GRACE NARI
Plaintiffs

AND

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Defendant

Waigani : Los, J
2003 : 10th September
2004 5th March

DAMAGES - Liability maybe determined but Plaintiff still has to prove loss loss suffered must be as natural consequence of wrong done Court should assess compensation in robust manner resolving dispute against the party whose actions have made accurate determination problematic Compensation is to relieve someone from loss suffered and is not a gift.

Cases Cited:
Jonathan Pareria v. Jacob Jasuan & Ors v. the State N1343.
Bonam Carter v. Hyden Park Hotel Ltd (1948) 64 TLR 177.
Admiralty Commissioner v. SS Valera (1972) 2 AC 242.
Peter Goodenough v. The Independent State of PNG of 15 August 2003.
Butler v. Egg and Egg Pulp Marketing Board [1966] HCA 38; (1915-66) 114 CLR 185

Counsel:
L Manua, for the Plaintiffs
F Kuvi, for the Defendants

The Plaintiffs, husband and wife, claim damages against the Defendant for loss of various business properties and goods based at Kieta, Arawa and Madang. They also claim damages for future loss of business and monies. Generally speaking the claim for loss consists of destruction and looting of personal properties and the company's assets and also resulting effect on being unable to repay bank loans. The resulting effect of the latter was that the Bank had to seize certain goods and properties in Madang to sell and recover the debt.

The liability having been determined on 5th June 2002 with entry of default judgment because the State had failed to file defense, the task now is to asses damages for the loss.

The evidence by the Plaintiffs was by way of six affidavits. Four of them were by Paul Nari and two were by independent witnesses namely, Paul Nerau and Leo Hannet who are leaders in Bougainville. Their evidence is required to confirm that the Plaintiffs were business woman and man who had owned and run businesses during the years 1983 to 1989 as summarized at the introductory state of this judgement.

The legal position in this case is that although the liability has been determined by default judgement in these proceedings, the Plaintiffs cannot obtain any damages automatically. They must prove the extent of the loss. The National Court decision in Jonathan Pareria v. Jacob Jasuan & Ors v. The State N1343 and the old English case of Bonam Carter v. Hyden Park Hotel Ltd (1948) 64 TLR 177 are examples of the authority on the principle. The Lord Chief Justice Goddard in the latter case at page 178 said the -

"Plaintiffs must understand if they bring a claim for damages... they must prove it"

The Plaintiffs must prove that loss was suffered as natural consequence of the wrong done: Admiralty Commissioner v. S.S Valeva (1972) 2 AC 242. I am certain the Plaintiffs themselves had that principle in mind when they had issued the proceedings because they say so in the writ of summons. They said they continued to suffer "as a direct consequence of the said destruction burning and looting".

Indeed if the loss had followed from the direct consequences of the States action through the hands of the agents, that is police and soldiers, the State cannot and shall not be allowed to insist on strict evidence to prove the loss. This would certainly be true where or if the evidence necessary to prove the loss had even been destroyed by the acts of the agents of the State and that had made it difficult to collect any or sufficient evidence to support the claim. This point was emphasized sufficiently by the Supreme Court in Peter Goodenough v. The Independent State of PNG on 15 August 2003. The court accepted the principle that the court should assess compensation in a robust manner resolving dispute against the party "whose actions have made an accurate determination so problematic".

But let me state here that I am not turning my attention away from the submission by the State counsel that the court must not ignore altogether a need to demand more corroboration on evidence of damages. In particular I take into account the submission by State counsel in this case that the independent evidence by two Boungainvillian leaders was principally supporting the claim that the Plaintiffs did have businesses operating in Bougainville at the time but that evidence alone could not show any form or extent of damages caused to the Plaintiffs business. I accept this wise caution. I also add with a principle referred to in Butler v. Egg and Egg Pulp Marketing Board [1966] HCA 38; (1965-66) 114 CLR 185 that compensation is to relieve one from loss suffered and is not a gift.

Loss of properties at Kieta

The Plaintiffs claim they had lost a prime property at Kieta which they initially had bought for K450,000.00. Thereafter they say they had made a lot of improvements for a cost of K800,000. These improvements constituted of a three bedroom high covenant house, two bedroom supervisors flat, 15 room staff quarters, freezer complex, three ten thousand litre mini southern cross water tanks and concrete paths. All these added up to K1,250,000.00.

The Plaintiffs said that in the building they had wholesale retail and mini supermarket. They lost the goods and items ranged from freezer containers to stock and personal family possessions. They lost all these and they say the value was K1,061,2000. These were –

1. Four freezer container worth K200,000.00 each = K 80,000.00
2. 9 chest freezer work K1,000.00 each = K 14,400.00
3. 6 deep fryers work K8,000.00 each = K 48,000.00
4. 7 food warmers worth K2,500.00 each = K 17,500.00
5. 3 chicken rosaries worth K4,000.00 each = K 12,000.00
6. 2 meat pier warmers worth K500.00 each = K 1,000.00
7. 1 meat cutter chain saw worth K20,000.00 = K 20,000.00
8. 9 cash registers worth K2,300.00 each = K 20,700.00
9. 2 soft drink coolers worth K4,000.00 each = K 8,000.00
10. Cash bolt safe worth K20,000.00 = K 20,000.00
11. Stationeries worth K20,000.00 = K 20,000.00
12. Store stock (wholesale) K342,800 .00 = K 342,800.00
13. Freezer goods (wholesale) K245,800.00 = K 245,800.00
14. Personal family possessions worth K50,000.00 = K 50,000.00
15. Store stock retail worth K117,000.00 = K 117,000.00
16. Freezer goods retail worth K44,000.00 = K 44,000.00
    

Sub Total = K1,061,200.00

The independent evidence by the two leaders assist on the existence and establishment of the business. That I accept. As to the damages I accept that damages were caused in and during the war but as to how and by whom in particular had not been specific. To an extent the Plaintiffs have conceded in paragraph 15 of Paul Nari's affidavit of 3rd September 2003 that "Bougainvilleans (were) taking advantage of the situation".

The goods destroyed included family possessions. I consider that many of the goods could not have any value to the soldiers and police as servants of the State. They were lost or damaged as a result of the 'war'. Let me explain my rationale in this respect. There was a 'war' where the soldiers and the police could not be expected to protect each life and each property especially there was a citizens against citizens 'war'. I do take into account the difficulties of getting exact costs and prices in the circumstances that had caused the war. The total of the two claims for loss of properties in Kieta is K2,311,200.00. Taking into account many exigencies I have discussed, I award K2,000,000.00.

Claims for loss of properties at Arawa.

The Plaintiffs claim that they had lost some six vehicles, a house and improvement and goods in the shop operated underneath the house. The value of the six vehicles ranged from K15,000 to K27,000.00. The damages claimed for these vehicles were -

(1) One Daihatsu 2x6 wheel truck worth K15,000.00 = K 15,000.00

(2) One Mazda 1500 utility work K18,000.000 = K 18,000.00

(3) One Nissan path finder worth K27,500.00 = K 27,500.00

(4) One Nissan Navara utility worth K15,000.00 = K 15,000.00

(5) One Nissan Urvan 15 seater bus K18,000.00 = K 18,000.00

(6) One Toyota Hilux utility 4x4 worth K25,000.00 = K 25,000.00

Sub Total = K118,500.00

I have discussed what consideration maybe relevant in assessing damages. Liability has been entered but that does not follow that the claimants are automatically entitled to 100% value of the properties. The State had put its agents to go to Arawa because there were law and order problems from rebellion to war.

For the loss of other goods at Arawa they claim a sum of K194,804.40. They have given a list of the lost goods in three categories. They are electrical equipment (household), stock and freezer goods and personal house hold furniture. They give descriptions and prices as –

1. 3 deep fryers @ K12,000.00 each = K 36,000.00
2. 2 chicken roasters sets @ K4,000.00 each = K 8,000.00
3. 1 meat pie warmer @ K700.00 = K 700.00
4. 4 cash register @ K1,800.00 each = K 7,200.00
5. 5 deep freezer @ K2,500.00 = K 4,500.00
6. 1 soft drink cooler @ K 4,500.00 = K 4,500.00
7. trading stock in shop worth K68,904.40 = K 68,904.40
8. freezer goods worth K27,000.00 = K 27,000.00

9. & househord fure ture (persopersonal possession) K38,000 = K 38,000.00

Sub Total = K194,804.40

Fe losthe hand iprove the Plaintiffs claim K400,000.00. Togethogether ther they cley claim Kaim K713,3713,304.4004.40 Again I consider the circumstances led to the loss of the properties had to make any direct evidence impossible. Taking all these into account I award K700,000.00

Claim for loss of properties at Madang

The Plaintiffs say they had expanded their business to Madang where they purchased three properties at K2 80,000.00, K200,000.00 and K80,000.00 totalling K560,000.00. These are not subject of any dispute.

There was no crisis in Madang like in Bougainville that would have caused any loss. But the argument is that the claim arise directly from the consequences of the action of the PNG Government through the agents, the Security Forces at Bougainville.

I accept the notional argument that had it not been for the 'war' in Bougainville, the plaintiffs could not have lost their business in Madang. However, I must accept certain arguments advanced on behalf of the State. There was a rebellion against the State and the State agents were sent to quell and defend that state. There was no war against the citizens like the plaintiffs. A further factor is that the plaintiffs as successful business persons had not shown that they had taken any steps during their successful business time to mitigate any unforeseen risks. For instance there is no evidence that they had insured their business nor was there any savings to the extent at least to protect the properties in Madang against a take over by the Bank their creditor.

Taking all that I discussed into account I award K500,000.00.

The total grant for the economic loss in three places therefore is K3,200,000.00.

I do not award any damages under the claim for future loss. I do not consider the situation in Bougainville would lend itself for any positive consideration.

The Plaintiffs have asked for an award of exemplary damages. I consider that the circumstances of this case do not lend themselves for such an award. Some discussion on this principle took place in the case of Abel Tomba v. The State (1997) SC518. That is if any State agents act extra ordinarily beyond their powers under any legislation the State should not pay for any claims on their behalf. I dismiss this part of the claim. I award interest at 8%, it cannot be more under Judicial Proceedings (Interest On Debts and Damages) Act Chap 52. The interest shall run from the date of issue of the writ.

The total award for three places is -

1. Kieta K 2,000,000.00

2. Arawa K 700,000.00

3. Madang K 500,000.00

Total K3,200,000.00
__________________________________________________________________
Lawyers for the Plaintiffs : Harricknen Lawyers
Lawyers for the Defendants : Solicitor General