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Baine v Ulga [2019] PGNC 259; N8076 (18 October 2019)

N8076

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 157 OF 2015

COUNCILLOR STANLEY BAINE FOR HIMSELF
AND 76 OTHERS NAMED IN THE SCHEDULE TO THE WRIT
Plaintiffs

V

ARNOLD ULGA, JOSHUA KAS & ROSE LAGAN
First Defendants

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2019: 12 June, 16, 18 July, 13 August, 5september,
18 October

DAMAGES – breach of human rights – Police raid of island village– property damage – assault – assessment of damages after entry of default judgment.

The plaintiffs sued the defendants (various members of the Police Force and the State) in connection with a police raid of their village and destruction of their homes, gardens and other properties and assault of some plaintiffs. The causes of action pleaded in their statement of claim were breaches of human rights. Default judgment was entered against the defendants. At the trial on assessment of damages, 76 plaintiffs gave evidence and sought damages in four categories: (a) general damages for pain and suffering, distress etc, K50,000.00 each; (b) property losses, various amounts totalling approximately K3 million; (c) breach of human rights, K10,000.00 each; and (d) exemplary damages, K10,000.00, a grand total of approximately K9 million. In response, the defendants adduced no evidence, and made no submissions.

Held:

(1) Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that a police raid, unsupported by the order of any Court, took place in the manner alleged, involving destruction of property, fear and distress and bodily assault on some plaintiffs.

(2) Damages were awarded to each plaintiff who gave evidence in the following amounts: (a) general damages for pain and suffering, distress etc, K10,000.00 each, a total of K760,000.00; (b) property losses, each claim being discounted by 90% to arrive at an appropriate assessment, a total of K299,865.45; (c) breach of human rights, K5,000.00 each, totalling K380,000.00; and (d) exemplary damages, K5,000.00 each, totalling K380,000.00, grand total of damages of K1,819,865.45. In addition each plaintiff was awarded interest on the amount of damages awarded to them, at the rate of 2% per annum, for the period from the date of the filing of the writ to the date of judgment, a period of 4.52 years, a total of K164,515.85.The total judgment sum was K1,984,381.30.

Cases Cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kolaip Palapi v Sergeant Poko (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Peter Wanis v Fred Sikiot and The State (1995) N1350
Philip Nare v The State (2017) SC1584
Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100
William Mel v Coleman Pakalia (2005) SC790
Yange Lagan v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages following entry of default judgment.

Counsel

B B Wak, for the Plaintiffs
S Maliaki, for the Defendants

18^th October, 2019

1. CANNINGS J: This is an assessment of damages following entry of default judgment against various members of the Police Force (first defendants) and the State (second defendant).

2. The plaintiffs are residents of Narer village, Karkar Island, Sumkar District, Madang Province. They commenced proceedings against the defendants by writ of summons, in 2015, claiming damages for breaches of human rights committed by members of the Police Force, led by the first defendants, in a Police raid (conducted for unknown reasons) of Narer village on 22 January 2010. They alleged that members of the Police Force, led by the first defendants, most of them members of the mobile task force unit stationed at Jomba Police Station, Madang town, destroyed their homes, gardens and other properties and in some cases threatened and assaulted the plaintiffs.

3. The defendants failed to properly defend the matter and on 16 February 2019 default judgment was ordered against them. A total of 76 plaintiffs have given evidence.

PLAINTIFFS’ CLAIMS AND DEFENDANTS’ RESPONSE

4. The plaintiffs seek damages in four categories:

(a) general damages for pain and suffering, distress etc, K50,000.00 each;

(b) “special damages”, which is better regarded as a claim for property losses, various amounts, totalling approximately K3 million; and

(c) breach of human rights, K10,000.00 each; and

(d) exemplary damages, K10,000.00 each.

The total amount of the plaintiffs’ claims is approximately K9 million.

EVIDENCE

5. The plaintiffs’ case consisted of affidavits sworn by 76 plaintiffs, each affidavit deposing to what the police had done and the property damage, assaults and threats that the deponent had incurred and/or witnessed. The defendants adduced no evidence.

STATUS OF DEFAULT JUDGMENT

6. Counsel for the defendants did not appear at the trial at the time for making submissions. This was after I had granted an adjournment to allow counsel time to prepare. The plaintiffs’ counsel, Mr Wak, was ready, and opposed any further adjournment, so I heard submissions for the plaintiffs and heard no submissions (and no written submissions had been filed) for the defendants.

7. As explained by the Supreme Court in William Mel v Coleman Pakalia (2005) SC790, the role of the judge assessing damages after entry of default judgment is:

• to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;
  
• if the facts and cause of action are reasonably clear, liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;
  
• only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability;
  
• the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;
  
• any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
  

8. I am satisfied that the facts and the causes of action are pleaded with sufficient clarity. Liability is therefore regarded as proven. The plaintiffs have established causes of action against the defendants for breaches of human rights, in particular, breach of the following:

• the right to freedom from inhuman treatment under Section 36(1) of the Constitution; and
  
• the right to the full protection of the law under Section 37(1) of the Constitution; and
  
• the right to freedom from arbitrary search and entry of their property and premises under Section 44 of the Constitution
  

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES

9. In assessing damages I have had regard to the following principles:

• The plaintiffs have the onus of proving their losses on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it (Yooken Paklin v The State (2001) N2212).
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).
  
• 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).
  
  • The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence (Yange Lagan v The State (1995) N1369).
    
  • The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).
    
  • The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi v Sergeant Poko (2001) N2274).
    

APPROACH TO ASSESSMENT OF DAMAGES
10. I will assess damages in the four categories of damages claimed by the plaintiffs.

(a) GENERAL DAMAGES

11. Mr Wak submitted that each plaintiff who has given evidence should be awarded K50,000.00 general damages. It is clear that it was a traumatic and disturbing experience for all plaintiffs to see the Police enter their village and threaten them with firearms and discharge firearms in the presence of women and children as they set about burning their dwellings and damaging or destroying other properties. However, there is insufficient evidence and precedent available on which an award of K50,000.00 would be warranted. I award each plaintiff who has given evidence the sum of K10,000.00.

(b) PROPERTY LOSSES

12. Though no submissions were made for the defendants, I take into account that a lack of corroboration pervades the plaintiffs’ evidence as to property losses, calling into question its veracity. For example, ten plaintiffs claim property losses in the range of K100,000.00 to K150,000.00. They have given evidence in support of these amounts, which, frankly I find difficult to accept, based on generous assumptions as to what property the plaintiffs had. There is no independent verification of the extent of the damage. I do not find it credible that property of that value would have been on a small island village.

13. The plaintiffs’ claims are in my view exaggerated. It is nonetheless appropriate to arrive at an assessment of damages. Though there are deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that a Police raid, unsupported by the order of any Court, took place in the manner alleged, involving mass destruction of property.

14. I have had regard to the approach I have taken in a number of other cases of multiple plaintiffs, in “police raid cases”. In some cases I have discounted each claim by a certain percentage to arrive at reasonable and realistic sums. For example:

• Eton Pakui v The State (2006) N2977: a case involving an unlawful police raid of Tulipato village, Enga Province. The 16 claims were each discounted by 90%.
  
• Joe Tipaiza v James Yali (2008) N3472: 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by Police and the provincial government in Madang. Each claim was discounted by 50%.
  
• Anuta Jobou v Alfred Kumasi and The State (2012) N4607: there was an unlawful police raid of Bom village in the Rai Coast district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The claims by the 155 plaintiffs were each discounted by 50%.
  
• Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221: 1,281 plaintiffs, illegal settlers on Government land in Madang, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81. It was held that there was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded. As for the claims for property damage, each claim was discounted by 90% to arrive at an award of damages for property losses.
  
• Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100: there was an unlawful police raid of a rural settlement in Madang district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The 1,335 plaintiffs obtained default judgment, but at the trial on assessment of damages, only 106 gave evidence. The 106 claims for property losses were each discounted by 90%.
  

15. In other cases I have awarded the same global sum to each plaintiff who has given evidence. For example:

• Justin Bau v Paul Karl (2010) N4123: 61 plaintiffs were the victims of a police raid at Muledami settlement in the hilltops around Kimbe, West New Britain. In an assessment of damages following entry of default judgment against the State I concluded that the claims were exaggerated and because of the lack of precision in the amounts being claimed by the plaintiffs I awarded them a flat figure of K10,000.00 each, rather than discounting each claim.
  
• Alphonse Willie v Simon Kaupa (2016) N6553: 1,852 plaintiffs sued the Police and the State after a series of raids on villages in the Gena area of Kerowagi District, Chimbu Province. Default judgment was entered against the State, which was held to be vicariously liable for the torts of trespass to property and detinue and for breaches of human rights committed by members of the Police Force. Because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence were awarded a global sum of K5,000.00 each to cover all causes of action and all categories of damages. The total amount of damages awarded was K8,435,000.00.
  

16. I have decided to take the first approach outlined above. I will discount each claim by 90% to take account of the deficiencies in the evidence. The result of this process of assessment is shown in table 1. Column 1 is the number ascribed to the plaintiff according to the numbering of his or her affidavit. Column 2 is the plaintiff’s name. Column 3 is the amount claimed by the plaintiff for property losses. Column 4 is the figure in column 3 multiplied by 10% (representing the discounting of the total claim for property losses by 90%). It is the figure in column 4 that is the amount awarded to the plaintiff for property losses (category (b) of the claims).

TABLE 1: AWARD OF DAMAGESFOR PROPERTY LOSSES

(c) COMPENSATION FOR BREACH OF HUMAN RIGHTS

17. It is appropriate to award a separate sum as compensation for breaches of human rights. I award K5,000.00 for each plaintiff, a total of K380,000.00.

(d) EXEMPLARY DAMAGES

18. It is appropriate to award a separate sum as exemplary damages. I award K5,000.00 for each plaintiff, a total of K380,000.00.

SUMMARY

19. Each of the 76 plaintiffs who has given evidence is awarded the total of the following sums:

(a) general damages: K10,000.00;
(b) property losses: the amount shown for that plaintiff in table 1;
(c) compensation for breach of human rights: K5,000.00;
(d) exemplary damages: K5,000.00.

20. The total award of damages to each plaintiff who has given evidence is shown in table 2.

INTEREST

21. Mr Wak submitted that interest should be awarded on the total amount of damages awarded to each plaintiff under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. He seeks interest at the rate of 2% per annum, in line with Section 4(3) of that Act. I uphold that submission

22. As for the period in respect of which interest is calculated, I fix the start date as the date of filing the writ, 26 February 2015. The end date will be the date of delivery of the interim judgment, 5 September 2019. The period is 4.52 years. Interest will be awarded by applying the formula D x I x N = A, where D is the amount of damages, I is the interest rate per annum, N is the period in years, A is the amount of interest. Interest has been calculated by multiplying each award of damages by a factor of 0.0904 (0.02 x 4.52) and is shown in table 2.

TABLE 2: TOTAL AWARD OF DAMAGES + INTEREST

COSTS

23. 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. I have given close consideration to awarding the plaintiffs only part of their costs as I have found their claims to be exaggerated. However, the defendants failed to provide any submissions. Therefore I have decided that costs will follow the event.

ORDER

1. Damages are payable by the defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
2. In addition, interest is payable by the defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
3. The case of any plaintiff whose name does not appear in the Schedule is dismissed.
   
4. Subject to any particular costs order to the contrary, costs of the entire proceedings shall be paid by the defendants to the plaintiffs whose names appears in the Schedule, on a party-party basis, to be taxed if not agreed.
   
5. The proceedings are thereby determined and the file is closed.
   

SCHEDULE

Judgment accordingly.
____________________________________________________________
Bradley Wak Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants