Oke v Kera [2010] PGNC 241; N3850 (19 January 2010)

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SENIOR INSPECTOR JEFFREY KERA, JIMMY ONOPIA, SIMON MALIWOLO AND JIMMY PEAKU
First Defendants

ALLAN KUNDI, PROVINCIAL POLICE COMMANDER
WESTERN HIGHLANDS PROVINCE
Second Defendant

DAMAGES - Assessment of damages - Costs of repairs, costs of stolen goods and loss of profit arising from various business operations - Claim arising from damage to PMV truck and loss of PMV operation business - Claim for loss of profit for trade stores, bakery, kai bar, poultry and piggery, sale of oil & fuel and sale of garden cash crops - Medium to large business operator - Prudent business practice to keep business records - Accountant's cash flow report unreliable and hearsay - Loss of profit grossly inflated - Insufficiency of evidence - Remoteness of damages.

Peter Wanis -v- Fred Sheekiot & The State (1995) N1350
Eriare Lanyat & Ors -v- George Wagulo & The State (1996) N1481
Obed Lalip & 20 Ors -v- Fred Sheekiot & The State (1996) N1457
Jonathan Mangope Paraia -v- The State (1995) N1343
Maktol Oke -v- Senior Inspector Jeffrey Kera & The State: WS No of 1179 of 2003 (Unnumbered & Unreported Judgment of 23rd June 2008)
Philip Benjamin -v- Department of Works & The State (2005) N2874
James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486
Graham Mappa -v- PNG Electricity Commissions [1995] PNGLR 170
Kerebal Farming & Trading Pty Ltd -v- Queensland Insurance (PNG) Ltd [1995] PNGLR 401
Andrew Kewa -v- Johnny Lus and Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14th March 2007)
Paulus Kei -v- Tony Hasu & The State (2004) N2743
Tony Kulam Kapil -v- Commissioner of Police & The State: WS No 1232 of 1998 (Unnumbered & Unreported Judgment of 13th July 2007)
Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85
Abel Tomba -v- The State (1997) SC 518

1. MAKAIL, J: This matter comes before me for trial on assessment of damages after default judgment was entered against the defendants on 25th June 2004. It arises from negligence actions by members of the Police Force when they exchanged gun fires with criminals in the heart of Mt Hagen town on 27th November 2002 and in the course of the shoot out, shot and damaged the plaintiff's motor vehicle. At the same time by standers looted the plaintiff's goods in the motor vehicle.

2. At the completion of trial on 23rd June 2008, I directed the plaintiff's counsel to file written submissions on quantum by or before 7th July 2008 and counsel for the defendants to do likewise by or before 21st July 2008. I reserved judgment to a date for parties to be advised. Both counsel did file their respective written submissions although belatedly and I did consider them in my deliberation.

1. His own affidavit sworn on 2nd February 2005 and filed on 23rd February 2006 (exhibit "P1");

2. Affidavit of Geoff Luna sworn on 30th June 2005 and filed on 2nd December 2005 (exhibit "P2");

3. Affidavit of Stanley Tendi sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P3");

4. Affidavit of Douglas Lingawa sworn on 15th October 2004 and filed on 5th November 2004 (exhibit "P4");

5. Affidavit of Jimi Pikie sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P5");

6. Affidavit of Pastor Bofeng Monda sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P6");

7. Affidavit of Pastor Taureka Tawa sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P7");

8. Affidavit of Pastor Johny Yuan sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P8"); and

9. Affidavit of Pastor Mununga Namai sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P9").

4. Counsel for the defendants neither called witnesses nor filed affidavits to refute the evidence of the plaintiff and his witnesses. Further, he did not cross examine the plaintiff and his witnesses in relation to their affidavits. Thus, much of the evidence of the plaintiff and his witnesses remained unchallenged.

5. But does that mean that the Court should just simply go ahead and award damages based on the unchallenged evidence of the plaintiff and his witnesses? In my view, I do not think so, for the law requires the plaintiff to prove his losses on the balance of probabilities. That means, I have to be satisfied on the balance of probabilities that the evidence presented so far establishes the various heads of damages the plaintiff seeks from the defendants notwithstanding the fact that default judgment has been entered against the defendants and liability is not an issue and that, no evidence has been offered by the defendants to refute the plaintiff's evidence.

6. The cases which counsel for the defendants cites in his written submission support this principle of law. Lord Blackburn, in Livingstone -v- Rawyards Coal Co (1880) 5 App Case 25, a case of which involved the extraction of coal by the defendant which the plaintiff was entitled at p 39 said:

"Where an injury is to be compensated by damages, in settling the sum of money to be given for ....... damages, you should nearly as possible, get at that sum of money which shall put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation."

7. This principle was reaffirmed and applied in the subsequent cases of Buttler -v- Egg & Ess Pulp Marketing Board [1966] HCA 38; (1966) 114 CLR 185 and The Albazero (1977) AC 774. In our jurisdiction, this principle was applied in the cases of Peter Wanis -v- Fred Sheekiot & The State (1995) N1350; Eriare Lanyat & Ors -v- George Wagulo & The State (1996) N1481; Obed Lalip & 20 Ors -v- Fred Sheekiot & The State (1996) N1457 and Jonathan Mangope Paraia -v- The State (1995) N1343. In Peter Wanis's case (supra), a police raid case where the State did not offer any evidence to refute the evidence of the plaintiff, Woods, J said:

"Whilst the State has failed to present any evidence disputing the general claim it is still necessary for the Plaintiff to produce appropriate evidence before the court to support the quantum of the claim."

8. In McGregor on Damages (Sweet & Maxwell, 13th ed, 1972 London), the learned author puts the same principle in another way as follows:

"The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages. This flows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation falls on him. Even if the defendant fails to deny the allegations of damages or suffers default, the plaintiff must still prove his loss."

9. These principles are applicable in Papua New Guinea as part of the common law which was adopted at independence on 16th September 1975 by virtue of schedule 2.2 of the Constitution.

PLAINTIFF'S CLAIMS
10. And so bearing in mind these principles of assessment of damages, I now consider each of the head of damages below in light of what the plaintiff claims in the statement of claim endorsed to the writ of summons filed on 20th August 2003 and as amended on 23rd June 2008 with leave of Court; see Maktol Oke -v- Senior Inspector Jeffrey Kera & The State: WS No of 1179 of 2003 (Unnumbered & Unreported Judgment of 23rd June 2008), which are:

11. I have read the affidavit of the plaintiff (exhibit "P1"). He says that he is a self employed businessman from Sakalem village, Upper Kaugel in the Tambul/Nebiliyer District of the Western Highlands Province. He is a self starter and small entrepreneur. On 3rd March 2000, he was selected and attended a course on how to start up a business sponsored by Ausaid in Mt Hagen. This course greatly enhanced his knowledge and skills. From there, he ran a trade store, bakery, PMV operations, selling of oil, petrol and fuel, road side delivery of items etc... He says from all these business operations, he makes a lot of money.

12. He says that he remembers 27th November 2002 very well as it was the events of that day that changed his whole life. On the morning of that day, he traveled to Mt Hagen in his PMV Mazda T3500 truck bearing Registration No P 510 X ("PMV truck") with paying passengers and their garden produce to Mt Hagen market. On his return trip to Tambul, he was to transport his store goods. After dropping off the passengers and their market produce at the market, he went to purchase assorted store goods and placed them in his PMV truck but on the way to his village, he stopped by and parked his PMV truck between John Foster News-agency and Mt Hagen Plaza building.

13. He says that on that day, armed robbers robbed the Mt Hagen BSP Bank and in their attempt to escape from the first defendants and other members of the second defendant, hijacked his PMV truck. In their attempt to stop the armed robbers from escaping, the first defendants and other members of the second defendant shot at the armed robbers in the PMV truck and in the process badly damaged it. It sustained the following damage:

14. As a result, he claims damages for replacement value of the PMV truck or alternatively, costs of repairs. He produces three quotations as estimated costs of repairs. The first two quotations are from PNG Motors Limited for K10,288.19 dated 5th December 2002 and K9,272.64 dated 27th January 2003 respectively and secondly from A1 Welding Services Limited for K2,434.00 dated 3rd December 2003.

15. Counsel for the plaintiff submits that the defendants should pay for the replacement costs of the PMV truck since it was found to be beyond repair and was subsequently sold cheaply for spare parts. He quotes a figure of K80,000.00 as costs for a replacement vehicle of that same model and make. I reject this claim for two reasons. First, whilst there is some foundation in the pleadings of the plaintiff at paragraphs 14 and 15 of the amended statement of claim that the PMW truck was damaged beyond repair and was sold cheaply for spare parts, there is neither evidence from the plaintiff nor his witnesses to prove these allegations.

16. For example, at paragraphs 10 to 12 and 14 of his affidavit (exhibit "P1"), the Plaintiff deposes that first, he bought the PMV truck some one and a half years ago and it was still brand new at the time it was damaged. Secondly, immediately after it was damaged, it was towed to Kaiwe Motors Limited and he obtained quotations from PMG Motors Limited, Kaiwe Motors Limited and A1 Welding Services for costs to repair it. But, he did not depose anywhere in his affidavit that the PMV truck was damaged beyond repair and was sold cheaply for spare parts. That is the first problem which I consider fatal to his claim for K80,000.00 as costs for a replacement vehicle.

17. Further to that, none of his witnesses deposed that the PMV truck was damaged beyond repair and was sold cheaply for spare parts. For example, in his affidavit sworn on 14th October 2004 and filed on 05th November 2004 (exhibit "P3"), Stanley Tendi, the District Rural Development Officer of Tambul-Nebliyer Electorate Division did not say if the PMV truck was damaged beyond repair and was sold cheaply for spare parts. This witness only said at paragraphs 4 and 5 of his affidavit that the plaintiff, "....... has recently approached me to do a detailed statement in respect of business loss, after his only vehicle used to transport his farm produce to market was damaged at the city of Mt Hagen involving policemen. Whilst based at Tambul, I knew of the damage to his vehicle, as the news of the gun fire between police and criminals was wide spread and that he became an innocent victim." (Underlining is mine).

18. Pastor Mununga Namai was an eyewitness of the hijack of the PMV Truck by the armed robbers that day and the looting of the plaintiff's goods. But I note that he only stated at paragraph 4 of his affidavit sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P4"), that, "I was really nervous and did not know what had happened. At this confusion, I jumped out of the vehicle and ran for safety. I later realized that, all the store goods were removed and the vehicle could not start and move. Great damage was done to the vehicle." (Underlining is mine).

19. In my view, the plaintiff's evidence, Stanley Tendi's evidence and Pastor Mununga's evidence are vague in relation to establishing whether the PMV truck was completely damaged or damaged beyond repair that the only means of restitution is the costs of replacement.

20. Secondly, there is no evidence from a qualified mechanic or mechanics placed before me to support the submissions of counsel for the plaintiff that the PMV truck was damaged beyond repair and was sold cheaply for spare parts. This is a fatal omission on the part of the plaintiff. So how do I know if it was damaged beyond repair and subsequently sold for spare parts? Simply put, there is either no evidence or the evidence is vague such that it insufficient to establish the allegations pleaded at paragraphs 14 and 15 of the amended statement of claim. Accordingly, I find that the plaintiff has not established his claim for K80,000.00 for costs of replacing the PMV truck on the balance of probabilities and I dismiss it.

21. On the other hand, the plaintiff claims costs of repairs of the PMV truck. To verify his claim that his PMV truck sustained damage during the shoot out between the armed robbers and the first defendants and other members of the second defendant, he produces photographs of the damaged PMV truck. I can see from the photographs that it is severely damaged.

22. But I find that there is no evidence from a mechanic attesting as to the extent of the damage to the PMV truck and whilst I acknowledge that it is important to have such evidence placed before the Court as was observed by Davani, J in Philip Benjamin -v- Department of Works & The State (2005) N2874, in my view, it is not a fatal omission on the part of the plaintiff because the photographs that were tendered in the affidavit of the plaintiff (exhibit "P1") as I said earlier sufficiently identifies the PMV truck by its registration number and also the nature and extent of the damage which is consistent with the evidence of the plaintiff.

23. The three quotations represent costs for different parts of the PMV truck that were damaged during the armed robbery and hijack incident. Accordingly, I am satisfied that the PMV truck was severely damaged but not to the extent that it was beyond repair. I am also satisfied that, based on the three quotations produced by the plaintiff, the total costs of repairs is K21,994.83. I award K21,994.83.

24. Finally, the plaintiff also claims costs of towage of the PMV truck by Kaiwe Limited to the workshop after it was damaged. The cost of towage according to the invoice issued by Kaiwe Limited dated 28th November 2002 is K99.00. I consider that costs of towage is an associated and necessary costs incurred by the plaintiff to have the PMV truck delivered to the workshop for repair. It is a necessary expense incurred by the plaintiff which should be refunded by the defendants. Hence, I am satisfied that the plaintiff incurred this cost and would have paid it to ensure that his PMV truck is brought to the workshop for repairs. I award K99.00. Therefore, I award a total sum of K22,093.83 for costs of repairs and towage.

25. Counsel for the plaintiff did not address his mind to this head of damages in his written submission neither did counsel for the defendants. Nevertheless, since there are pleadings at paragraph 13 of the amended statement of claim and evidence from the plaintiff supporting a claim for damages under this head, I will consider it.

26. The plaintiff says that as a result of the damage to his PMV truck, his business operations collapsed. I have no doubt that the plaintiff has suffered some stress and anxiety as a result of the collapse of his business operations. In James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486, I awarded K5,000.00. I had done so because I found that it was not a serious case of frustration and distress. Nonetheless, it arose from similar circumstances as the present case, that being loss of PMV service operations. As the loss of the PMV truck not only affected the plaintiff's PMV service business but also the shops and other businesses, I will increase the award by another K5,000.00, thereby giving a total of K10,000.00. I award that amount here.

27. The plaintiff also claims loss of profit arising from the following business operations which I list below and will address each hereunder:

28. The plaintiff claims a total sum of K3,367,713.00 under this head of damages. How he arrives at this figure is found at paragraphs 36(a)-(c) of his affidavit (exhibit "P1") and the affidavit of Geoff Luna (exhibit "P2"). First, he produces a copy of the Certificate of Registration of the PMV truck dated 19th April 2002 which would have expired on 19th April 2003 and the Certificate of CTP Insurance dated 19th April 2002 in the name of the plaintiff for PMV purposes. As the registration of the PMV truck was valid at the relevant time, I find that the plaintiff was operating a PMV business at that time it sustained damage, and that, he was the owner of the PMV truck.

29. In James Liwa & Peter Kuriti's case (supra), I said that there are two schools of thought when it comes to establishing a claim for loss of profit in a PMV business operation. I made that observation after I reviewed a number of past cases on loss of profit arising from PMV business operations such as Graham Mappa -v- PNG Electricity Commissions [1995] PNGLR 170, Kerebal Farming & Trading Pty Ltd -v- Queensland Insurance (PNG) Ltd [1995] PNGLR 401, Andrew Kewa -v- Johnny Lus and Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14th March 2007), Paulus Kei -v- Tony Hasu & The State (2004) N2743, and Tony Kulam Kapil -v- Commissioner of Police & The State: WS No 1232 of 1998 (Unnumbered & Unreported Judgment of 13th July 2007) where I said at pp13 and 14 of the judgment:

"I have laboured to cite at least five past cases which had discussed the question of sufficiency of evidence in cases where the claim is one of loss of profit. Out of these five cases, there appears to me to be two schools of thought in respect of the kind of evidence that needs to be brought before the Court to prove claims for loss of profit arising from business ventures or operations.

First, the cases of Graham Mappa (supra), Kerekal Farming & Trading Pty Ltd (supra), Paulus Kei (supra) and Tony Kulam Kapil (supra) show that it is not sufficient to rely on Affidavit or oral evidence of Plaintiffs to prove claims for loss of profit. There must be some independent evidence like financial statement(s) from an accountant to support the claim for loss of profit. If the accountant's evidence and financial statement(s) are to be relied upon, then they must be based on primary documents like, bank statements, receipts and invoices, contracts and other documents which would show assets acquired, income due and liabilities incurred by the business.

The other school of thought is where, if there is no evidence to the contrary or evidence disproving or contradicting the evidence in support of the claim for loss of profit, the Court merely relies on the Affidavit or oral evidence of Plaintiffs to assess an appropriate amount for loss of profit. This means that, whatever amount the Plaintiffs state in their Affidavits or oral evidence unless disproved or contradicted by other evidence may be accepted and relied upon by the Court to calculate the amount of damages. The case Andrew Kewa (supra) followed this line of thinking."

30. In James Liwa & Peter Kuriti's case (supra), the plaintiffs claimed general damages as well as loss of profit as a result of cessation of a PMV business operation after police unlawfully confiscated the PMV licence and a driver's licence. For loss of profit, the plaintiffs claimed K64,430.00. I followed the first school of thought and found that the Plaintiffs had not proven their claim for loss of profit on the balance of probabilities. One of the reasons for reaching that decision was that, the plaintiffs had neither called an accountant to give evidence to verify the claim for loss of profit nor had they produced any profit and loss statement to establish loss of profit whilst the PMV bus was out of operation.

31. The other reason was that, the plaintiffs had not produced evidence of bank statements or pass book to show how much money was deposited into the account and how much money was withdrawn from the account to pay for the expenses of the PMV operation. Further, if they were unable to produce a Financial Statement from an accountant, they should have provided invoices and receipts of payment of expenses or at least an accounts ledger or book. I had considered that these were documents that were within the plaintiffs' reach and had expected the plaintiffs to make them available. For example, when buying fuel for the bus, one would have expected the plaintiffs to have obtained receipts of payments for the fuel from the fuel service station. If the receipts were provided, they would have enabled the Court to work out the total fuel costs of the bus.
The final reason was that, they had not provided independent evidence from another PMV operator(s) to at least draw a comparison on the kind of income of PMV operations or services in Mt Hagen. I held that view because that piece of evidence would have been helpful to demonstrate to the Court the income derived from this kind of business.

For those reasons, I concluded that, "[t]o my mind, a mere statement in the Affidavit that this is the income of the PMV operation and these are the expenses of the PMV operation without any invoices, receipts of payments or bank statements is not sufficient to justify an award. For to do so will not be seen as adhering to the warning of Lord Goddard CJ where he said in Bonham Cater's case (supra) at page 178 that "Plaintiff must understand that if they bring action for damages it is not enough to write down particulars and so to speak, throw them at the hand of court saying - This is what I have lost, I ask you to give me this damages. They have to prove it."

32. I do not see any reason for me to depart from following the decision of James Liwa & Peter Kuriti's case (supra) and I do so here. In the present case, in terms of establishing his business losses, he produces a cash flow report prepared by a registered tax accounting firm named, Fair Business Consultant. I have considered it and note that, there is no evidence from the accountant on what sort of documents he relied upon to come up with the figures stated in the cash flow. Hence, whilst I have before me figures in the cash flow report, I do not know the basis of the figures. The Court is entitled to and is entitled to expect evidence either from the accountant to show how the figures were arrived at or some sort of documentary evidence like bank statements showing income of the business and copies of receipts of payments as expenses of the business operations in order to form the basis of the figures stated in the cash flow report.

33. All these evidence are absolutely critical to establish a claim for loss of profit. In the case of Tony Kulam Kapil's case (supra) which I had followed in James Liwa & Peter Kuriti's case (supra), Lay, J was faced with a slightly different situation to the one at hand in that, in that case the plaintiff claimed inter-alia loss of profit from sale of coffee after his motor vehicle, a Hino truck was involved in a fatal road accident at Wabag bridge in the Enga Province on 20th September 1999. The Hino truck was severely damaged and as a result, the plaintiff could not use it to buy and sell coffee by transporting them to the coffee depot.

34. To support the claim for loss of profit, the plaintiff had brought in an accountant who gave evidence and produced a statement of estimated loss of income. Whilst the plaintiff was able to produce an accountant's report on the financial loss of the plaintiff, the Court was faced with two predicaments when trying to accept the evidence of the accountant which were:

1. The accountant only gave evidence of an estimate of the loss. This indicated that he had not based his statement of loss of income on primary documents like, bank statements, receipts and invoices, contracts and other documents which would have shown assets been acquired, income due and liabilities incurred by the business; and

2. There were no bank statements, no accounts prior to the trading years, no factory indoor receipts of previous sales of coffee and no income tax statements.

35. In the end, the Court found that there were no evidence to support the claim for loss of profit and even if the Court were to award a "conservative figure for damages", there were no evidence for the Court to base its award and would really be a guess work.

36. In the present case, I consider that a cash flow report is not an accurate accounting document to establish the loss incurred by the PMV business. It is only an estimate of the likely income and the expenses of the PMV business. It is no wonder, the projected total loss of the various business operations or the expected profit up to 2010 is K3,360,163.00. In my view, this projected or estimated loss of profit is grossly inflated. It is therefore, unreliable.

37. Further, I find this present case identical to the case of Tony Kulam Kapil (supra) in the sense that whilst there is an accountant's report on the cash flow of the plaintiff's business, the figures in the cash flow are only estimates. That report would have been more accurate and reliable if the accountant gave evidence of the source of the figures or the basis of the figures in the cash flow report in his affidavit (exhibit "P2"). So really, for the Court to rely on it as the basis of calculating the loss of profit of the business would be like asking the Court to make a guess of the loss of profit of the business. Thus, it is unreliable and I reject it. That means, I will not rely on it to assess the loss of profit for the plaintiff's PMV operations business.

38. Following on from that reason, is a further reason for me to reject the cash flow report. I am of the opinion that the evidence of Geoff Luna in his affidavit (exhibit "P2") including the cash flow report is hearsay. They are hearsay because what is contained in them is based on what the plaintiff told him. I give an example to emphasize the point. At paragraph 4 of his affidavit (exhibit "P2"), he deposes that, "I confirm in late April 2005, Mr Makol Oke approached our firm, to do a cash flow, for the purpose of calculating business loss in relation to a Mazda truck being damaged by police."

39. How did he know the income and expenses of the business in order for him to project or estimate the loss of profit of the business? Did he physically see the PMV truck transporting passengers to and from the plaintiff's village to Mt Hagen town or did he see the plaintiff transport store goods from Mt Hagen to the village? Did he have before him bank statements, receipts of payments and income to draw up the cash flow or was it based on what the plaintiff told him? He does not state these matters in his affidavit (exhibit "P1"), or in other words, what primary source of documents he relied upon to draw up the cash flow of the plaintiff's PMV business operations. For example, he does not state that the figures for loss of profit for each year from 2003 to 2010 in the cash flow report were based on the income derived from the PMV business operations and the receipts of payments.

40. Since the plaintiff gave evidence that he is a self starter and a determined entrepreneur in his business, and that, he had attended a course sponsored by Ausaid on how to start up his own business, it is expected of him to place before the accountant or better still, this Court records of his PMV business earnings and expenses to support his claim for loss of profit. He did not do that and I fail to see why he did not do that given his knowledge and experience as an entrepreneur. And from the evidence generally, it appears he is a medium to large business operator, hence it is expected that he should have proper records of his business operations.

41. Thus, in addition to the absence of any evidence of bank statements, receipts and invoices, contracts, tenancy agreements and other documents which would show assets acquired, income due and liabilities incurred by the PMV services business, I conclude that what Mr Luna has deposed in his affidavit (exhibit "P2") and written in the cash flow report are based on what the plaintiff told him. They are hearsay and I reject them in their entire.

42. As I have rejected the entire evidence of Mr Luna in his affidavit (exhibit "P2") including the cash flow report, it follows that I reject the submissions of counsel for the plaintiff that I should accept the evidence of Geoff Luna for the following reasons, "Mr Geoff Luna is an accountant. He owns and manages Fair Business Consultants. He gave evidence on cash flow. This evidence was tendered into evidence by consent and unchallenged. This witness was not cross examined. The cash flow is very detailed. He starts of (sic) by giving evidence of the background, history, purpose of cash flow etc.. His evidence which went into court unchallenged calculates the business loss for a 8 year period ending 31st December 2010 at K3,367,713.00. Defence Counsel chose not to cross examine the witness on all these. As this evidence is not challenged, we ask the court to accept same."

43. I also reject counsel's submission that, "[t]hese are very, very crucial evidence that was allowed by defence counsel to go through without objection. The court is asked to accept this evidence in totality. At the end, the accountant assesses loss of profit up to the year 2010 at K3,367,713.00. This is a substantial amount of money and defence counsel chose not [to] challenge by cross examination," because, whilst it is true that the amount of K3,367,713.00 is substantial and that, counsel for the defendants did not cross examined Geoff Luna on how he arrived at that amount, it does not necessarily mean that the entire evidence of this witness should be accepted and relied upon by the Court, like in this case, to calculate loss of profit of the plaintiff's PMV business operations.

44. This witness's evidence is still subject to the rules of evidence like, its probative value and hearsay. Hence, for reasons that Mr Luna's evidence including the cash flow report is unreliable and hearsay hence, inadmissible, the submission of the plaintiff's counsel must therefore, fail. It follows that there is either insufficient or no evidence to establish loss of profit for the PMV service business and I dismiss it.

45. The plaintiff claim costs of stolen assorted store goods in the PMV truck which he says were stolen after he abandoned the PMV truck and fled for his life when the armed robbers took control of the PMV truck that day. He provides invoices and receipts of payments from Dae Won Trading Limited, CB Chee Limited, Collins & Leahy Merchandising and other shops annexed to his affidavit (exhibit "P1") for the total sum of K18,924.20 in the purchase of assorted goods.

46. I am satisfied based on the evidence of the plaintiff and the invoices and receipts of payments that the plaintiff lost K18,924.20 worth of assorted goods. This head of claim has been sufficiently made out and I award K18,924.20.

47. He also claims loss of profit of two shop operations. One shop he says is a medium to large operation which is based in the town of Tambul while the second, is a small one in his Sakalem village. To support his claim for loss of profit, Pastors Munumga Namai, Bofeng Monda, Taureka Tawa and Johny Yuan swore affidavits deposing that the plaintiff indeed owned and operated 2 shops at those two locations.

48. I have three problems with this claim. First, there are no trade store or shop licences in evidence before me to verify that the plaintiff owns and operates these two trade stores. It is my view that the evidence of Pastor Bofeng Monda in his affidavit of sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P6"), affidavit of Pastor Taureka Tawa in his affidavit sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P7"), Pastor Johny Yuan in his affidavit sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P8"), and Pastor Mununga Namai in his affidavit sworn on 14th October 2004 and filed on 5th November 2004 (exhibit "P9") are not conclusive evidence of the plaintiff's shop business, hence do not advance the plaintiff's case.

49. All they attempt to do is to verify the plaintiff's assertion that the plaintiff owns and operates two shops. For anyone can come to Court and say the plaintiff owns and operates two shops. So how do I know that the plaintiff was legally operating the two shops at that time in order to find that he should be awarded damages in terms of loss of profit? I find none, and so I must reject this claim.

50. The second problem is that, the claim is too remote. How would the defendants be expected to know that the plaintiff owned and operated two shops at the relevant time? Remoteness of damages is one of the principles of restitution. If the claim for damages is too remote, the law states that the wrong doer should not be held liable for damages. It is my view here that the plaintiff's claim is too remote as the defendants did not foresee that their actions would cause the plaintiff to loose money from his two shops operations.

51. Even if I am wrong in reaching this conclusion, I would still reject it because I have already rejected the cash flow report by the accountant, Mr Luna. This report attempts to establish that the plaintiff operated two shops at the relevant time and made losses as a result of the damage to the PMV truck. However, as I have rejected that report, there is either insufficient or no evidence to establish the loss of profit. For this reason too, I dismiss the claim.

52. The plaintiff also claims loss of profit for road side sale of goods. I decline to make an award under this head of claim based on the reasons I have given in relation to the claim for loss of profit for the two shops.

53. The plaintiff also claims loss of profit for operating a bakery. I decline to make an award under this head of claim based on the reasons I have given in relation to the claim for loss of profit for the two shops.

54. The plaintiff also claims loss of kai bar. I decline to make an award under this head of claim based on the reasons I have given in relation to the claim for loss of profit for the two shops.

55. The plaintiff also claims loss of profit for sale of fuel and oil. I decline to make an award under this head of claim based on the reasons I have given in relation to the claim for loss of profit for the two shops.

56. The plaintiff also claims loss of profit for sale of cash crops. I decline to make an award under this head of claim based on the reasons I have given in relation to the claim for loss of profit for the two shops.

57. The plaintiff also seeks special damages in his prayer for relief in the amended statement of claim. Special damages are awarded to cover for the costs associated with the tortuous actions of defendants. In this case, there are two problems with this head of damages. First, there are no pleadings in the amended statement of claim laying the foundation for this head of damages and secondly, there is no evidence supporting it. It is trite law that special damages must be proven by evidence. Thus, if there is no evidence to prove special damages, then no award will be made. As I said, there is no evidence from the plaintiff to prove special damages. That may be the reason counsel did not address this head of damages in their written submissions. I make no award under this head of damages.

58. I make no award for exemplary damages for the simple reason that the State should not be held responsible for the negligent actions of the other defendants as it did not authorize them to destroy the plaintiff's motor vehicle. See the cases of Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85 and Abel Tomba -v- The State (1997) SC 518. These were illegal police raids cases but the principle of law is the same as it is now settled that if individual policemen are identified, they must be held liable for exemplary damages.

59. In any case, I would not order the first, second and third defendants who are members of the Police Force to pay exemplary damages because I am of the view that they were in pursuit of armed robbers and did what they did in the circumstances to apprehend the armed robbers. It is unfortunate that the plaintiff and his PMV truck felled victim as a result of the pursuit by the first, second and third defendants. It was not a deliberate and intentional act by the policemen to destroy the plaintiff's PMV truck but rather a situation forced upon them by the escaping armed robbers. The armed robbers were the ones who forcefully removed the plaintiff and his passengers from the PMV truck in a last minute bid to escape from the policemen when they were shot at by the policemen.

60. For these reasons, there will be no award under this head of claim against all the defendants. This claim is therefore, dismissed.

61. I award 8% interest on the total judgment debt to cover for the time lost by the plaintiff to use the money. Adding only damages for costs of repairs of the PMV bus, costs of stolen store goods and damages for frustration, distress and anxiety, they equate to K51,018.09. I calculate 8% interest based on the principal judgment of K51,018.09 from date of issue of writ of summons of 20th August 2003 to the date of judgment of 19th January 2010 which gives a total of 2,344 days at K26,205.92.

1. Costs of repairs & stolen goods
2. General damages for frustration, distress and anxiety
3. Economic loss/ Loss of profit
4. Exemplary damages
5. Special damages
6. 8% Interest
7. Costs
Total

- K41,018.09
- K10,000.00
- K nil
- K nil
- K nil
- K 26,205.92

K77,224.01
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1. Judgment is entered against the Defendants for costs of repairs and associated costs in the total sum of K41,018.03.

2. Judgment is entered against the Defendants for damages for frustration, distress and anxiety in the sum of K10,000.00.

3. The Defendants shall pay 8% interest calculated from the date of issue of the writ of summons to the date of judgment in the sum of K26,205.92.

4. The Defendants shall pay the Plaintiff's costs of the proceeding to be taxed if not agreed.

5. The time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.
_____________________________________________________

Paulus Dowa Lawyers: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the Defendants

National Court of Papua New Guinea

Oke v Kera [2010] PGNC 241; N3850 (19 January 2010)