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Patitts for and on behalf of Sasaovia Business Group v State [2006] PGNC 84; N3088 (29 September 2006)

N3088

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 27 OF 1999

WILLIAM PATITTS
FOR AND ON BEHALF OF SASAOVIA BUSINESS GROUP
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Buka: Cannings J
2006: 18 August, 29 September

JUDGMENT

DISCIPLINED FORCES – Defence Force – trespass to chattel – commandeering of privately owned truck, without payment, for Defence Force purposes – Bougainville Crisis – trial on liability and damages.

DAMAGES – special damages – damages representing loss of profit-earning chattel – plaintiff awarded special damages, plus interest and costs.

The plaintiff is the personal legal representative of a business group that operated a PMV truck as a business venture. The plaintiff claimed that during the Bougainville Crisis a Defence Force detachment commandeered the truck, on the pretext that the business group was sympathetic to the BRA, and then used it, without payment and without the owner’s consent, for Defence Force purposes. The plaintiff brings a common law action against the State, which, he claims, is vicariously liable for the unlawful actions of the Defence Force.

Held:

(1) The plaintiff’s case is poorly and vaguely pleaded in the statement of claim but nevertheless sufficiently particularised for the cause of action to be properly regarded as an action based on the tort of trespass to a chattel, the business group’s truck.

(2) The elements of that tort were satisfied by the evidence adduced by the plaintiff; it being clear that the truck had been commandeered by the Defence Force, without payment and without the owner’s consent.

(3) The State is liable to pay special damages of K20,000.00 and damages for loss of profit of K60,000.00; being a total of K80,000.00.

(4) The plaintiff was awarded interest of K58,880.00, being a total judgment sum of K138,880.00; plus costs.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Dalin More v The State & Others N1736
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Peter Wanis v Fred Sikiot and The State (1995) N1350

STATEMENT OF CLAIM

This was an action in which the plaintiff sought damages for trespass to a chattel.

Counsel:

T R Tamusio, for the plaintiff
T P Potoura, for the defendant

INTRODUCTION

1. CANNINGS J: The plaintiff is the personal legal representative of a business group that operated a PMV/goods truck as a business venture. The plaintiff claimed that during the Bougainville Crisis a Defence Force detachment commandeered the truck, on the pretext that the business group was sympathetic to the BRA, and then used it, without payment and without the owner’s consent, for Defence Force purposes, especially for giving driving lessons to soldiers. The plaintiff brings a common law action against the State, which, he claims, is vicariously liable for the unlawful actions of the Defence Force.

BACKGROUND

Alleged incident

2. The plaintiff says that on 16 April 1996, the Defence Force contingent at Selau, North Bougainville, under the command of Major Bill Nande, commandeered his business group’s Dyna truck and used it for Defence Force purposes, for more than 15 months. The Defence Force never actually returned the truck, he claims. Rather, it was found abandoned on a road on north-west Bougainville on 27 July 1997, in a bad state of disrepair.

Statement of claim

3. On 13 January 1999, T R Tamusio & Associates, Lawyers, of Buka, filed a writ of summons on behalf of the plaintiff. The State was originally the second defendant, with the Secretary of the Department of Defence as the first defendant. However, the State is now the sole defendant.

4. The plaintiff seeks the following remedies:

• special damages of K24,661.29;
• loss of profits (K300.00 per day x 403 days) = K120,900.00;
• being a total claim of K145,561.29.
  

PLAINTIFF’S EVIDENCE

5. Mr Tamusio, for the plaintiff, tendered two affidavits by consent.

The affidavits

6. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS
TENDERED BY PLAINTIFF

DEFENDANT’S EVIDENCE

7. Mr Potorua, for the defendant, called no evidence.

THE CAUSE OF ACTION

8. The statement of claim does not expressly state the cause of action. However, given that it is a claim for damages for unlawful commandeering of a chattel – the Dyna truck – the cause of action is reasonably to be regarded as a common law action for trespass to a chattel. (See J G Fleming, The Law of Torts, 9th edition, LBC Information Services, © 1998, chapter 4, Intentional Interference with Chattels.) The action has been brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). The common law of trespass to chattels has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.

9. I have checked the statement of claim and I am satisfied that it adequately pleads the facts to support the elements of the tort relied on.

THE LIABILITY ISSUE

10. Though no evidence was presented by the defendant, the State, it flatly denies liability. Mr Potoura submits that the State cannot be liable for two reasons. First, no member of the Defence Force has been joined as a party. Secondly, the evidence in support of the plaintiff’s main contention about the commandeering of the truck is weak, vague and unreliable.

11. In support of the first proposition, Mr Potoura relies on Dalin More v The State & Others N1736 (National Court, Injia J) in which it was held that the State could not be held vicariously liable for rapes committed by unidentified police officers.

12. As for the second proposition, Mr Potoura relies on a plethora of cases that say that it is no good for plaintiffs simply to come to court with a list of itemised claims. Even when default judgment has been entered, plaintiffs must prove their losses with sufficient evidence to establish the elements of their cause of action on the balance of probabilities. Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia AJ.) The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

13. As for the first proposition, I reject Mr Potoura’s submission as the dicta in Dalin More has been taken out of context. The facts are to be distinguished as in the present case the plaintiff has in his evidence identified the personnel who he claims commandeered the business group’s truck. Dalin More does not stand for the proposition that the particular tortfeasor must be named as a party to the proceedings.

14. As for the second proposition, it is very difficult to sustain as the State has adduced no evidence. The central claims being made by the plaintiff – that his business group’s truck was seized, impounded, then deployed to Defence Force purposes – do not seem to me to be unbelievable, outlandish or beyond what was apparently the normal course of events during the Bougainville Crisis.

15. There is a strong argument to say that all of the Defence Force operations on Bougainville after the end of the state of emergency in the early 1990s were unconstitutional, as there was no proper call-out in aid of the civil power and it is not the role of the Defence Force to engage in civil war against this country’s citizens. Besides that, the ill-discipline of the Defence Force has been well documented in other quarters; indeed the widespread breach of human rights perpetrated by all sides of the conflict has been recognised and reflected in the Bougainville Peace Agreement, the Bougainville Constitution and the amendments to the National Constitution made as part of the resolution of the crisis.

16. What the plaintiff says happened to his business group’s Dyna truck sounds an entirely plausible story. He has deposed to what happened and how the truck was found abandoned and what has been done to try and make it roadworthy again. I see no reason to disbelieve the evidence and I am satisfied on the balance of probabilities that the elements of the tort of trespass to chattels have been proven by the plaintiff.

WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED?

17. I will set out in the following table the two categories of damages the plaintiff is claiming, as set out in Mr Tamusio’s submission. The table also summarises the defendant’s response, as per Mr Potoura’s submission.

18. Interest is not part of an award of damages and is assessed separately.

TABLE 2: PLAINTIFF’S CLAIMS AND DEFENDANTS’ RESPONSE

19. I will now set out and consider the submissions and make an assessment in relation to each category of damages.

CATEGORY NO 1: SPECIAL DAMAGES

Plaintiff’s submission

20. Mr Tamusio submitted that the evidence is that the truck has been inspected by a qualified mechanic and the cost of fixing it has been carefully itemised.

Defendant’s submission

21. Mr Potoura does not accept that the person who inspected the truck is a qualified mechanic. The evidence is lacking detail and authenticity, he submits.

Consideration

22. I agree to some extent with what Mr Potoura has submitted. On the other hand, the repair estimates do not seem to me to be manifestly excessive. I will discount the claim slightly to accommodate Mr Potoura’s point. I will award special damages of K20,000.00.

CATEGORY NO 2: DAMAGES FOR LOSS OF BUSINESS INCOME

Plaintiff’s submission

23. Mr Tamusio submitted that the plaintiff should be awarded K120,900.00, the amount pleaded in the statement of claim. He conceded that proper business records are not available to substantiate the claim, but asked the court to take into account that the events happened during the Bougainville Crisis, when life was particularly difficult for most Bougainvilleans, including the plaintiff and his business group.

Defendant’s submission

24. Mr Potoura predictably but justifiably seized on the lack of detail and proof in the evidence to support the plaintiff’s claims. There is nothing credible on which the court can make an assessment, he submitted.

Consideration

25. I agree, to some extent, with both counsel. I agree with Mr Tamusio that the effects of the Crisis cannot be ignored by the court. I agree with Mr Potoura that it can set a poor precedent if the court acts on the basis of guesswork and supposition. Having weighed both submissions and taking into account what I said before about how things happened in the Bougainville Crisis, I will make a compromise award of half the amount claimed, which for the sake of mathematical convenience I round out to K60,000.00.

SUMMARY OF DAMAGES AWARDED

See table 3 below.

TABLE 3: SUMMARY OF DAMAGES AWARDED

INTEREST

Relevant law

26. In the statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

Discretion

27. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

Exercise of discretion

28. I exercise that discretion in the following way:

1. A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.
   
2. As this is a claim against the State, the maximum rate that can be awarded is, by virtue of Section 1(2), 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.
   
3. Interest should be payable on the whole of the sum of damages for which judgment is given.
   
4. The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day of the retrieval of the truck, 27 July 1997. The date of judgment is 29 September 2006. The appropriate period, for the sake of mathematical convenience, is 9.2 years.
   

Calculation

29. I calculate the amount of interest by applying the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
  
• I is the rate of interest per annum;
  
• N is the appropriate period in numbers of years;
  
• A is the amount of interest.
  

Thus:

• K80,000 x 0.08 x 9.2 = K58,880.00
  

COSTS

30. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

31. The court directs entry of judgment in the following terms:

1. damages payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, William Patitts for and on behalf of Sasaovia Business Group, in the sum of K80,000.00;
   
2. interest payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, William Patitts for and on behalf of Sasaovia Business Group, of K58,880.00;
   
3. being a total judgment lump sum payable to the plaintiff, William Patitts for and on behalf of Sasaovia Business Group, of K138,880.00;
   
4. in the event that the total judgment lump sum for the plaintiff, William Patitts for and on behalf of Sasaovia Business Group, is not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8 percent yearly from the date of entry of the judgment on so much of the total judgment lump sum as is from time to time unpaid;
   
5. costs to be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.
____________________________

T R Tamusio & Associates: Lawyers for the plaintiff
Paul Paraka Lawyers: Lawyers for the defendant