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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 426 OF 2018
BETWEEN:
DAPHNE RIKIS FOR AND ON BEHALF OF THE ESTATE OF THE LATE RORE RALPH RIKIS
Plaintiff
AND:
KORA NOU, AS MANAGING DIRECTOR FOR NATIONAL BROADCASTING COMMISSION
First Defendant
AND:
NATIONAL BROADCASTING COMMISSION
Second Defendant
Waigani: Bre AJ
2023: 12th October
2024: 21st March
ASSESSMENT OF DAMAGES- liability can be challenged- however issue of defective pleadings raised earlier in inter-parte default judgment application – no appeal against default judgment- liability considered proven – principles of assessing damages considered - inadequate pleadings not a bar to awarding damages – where evidence insufficient- Court to do the best it can in dispensing justice by taking into account available evidence, similar case law, and reasonable judgment.
FACTS
The plaintiff and defendants are neighbours. The defendants’ property comprises three buildings that accommodate its staff.
The plaintiff alleges that the defendants’ sewer overflowed and spilled onto their property for years affecting their quiet
use and enjoyment of the land. The defendants did not defend the proceeding and default judgment was entered in favour of the plaintiff.
The defendants challenged liability at the hearing on assessment of damages on the basis of defective pleadings and contributory negligence.
HELD
1. The defendants challenge to the pleadings fails as the arguments are rehassed from the inter-parte default judgment application
Liability is assumed to be proven on the facts alleged in the pleadings.
2. The defendants are aware of the cause of action, which is based on negligence and liable for the negligent discharges of sewerage
onto the plaintiffs property.
3. The defence of contributory negligence must be pleaded and is not available where no defence is filed.
4. Inadequate pleadings are not considered to be a bar in awarding damages.
The plaintiff must prove damages and losses suffered, despite liability being considered proven.
5. Where there is no evidence, the Court can do the best it can to award damages in the interest of justice.
6. Damages are awarded to the plaintiff based on available evidence, caselaw and the exercise of reasonable judgement.
Cases Cited:
Papua New Guinean Cases
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Karingu v Papua New Guinea Law Society (2001) SC674
Kunong v Paradise Private Hospital (2022) N9698
Lerro v Stagg (2006) N2936
Maku v Maliwolo (2012) SC1171
Mel v Pakalia (2005) SC790
Mond v Okolo [1992] PNGLR 501
Niugini v NHEL (2020) SC1985
Opi Telikom (2020) N8290
Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) SC694
PNG Power Limited v Augerea (2013 SC1245
Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337
Rikis v Nou (2022) N9864
Seeto v NGIP (2019) N8137
Tedor v PNG Ports Corporation (2011) SC1137
Waisime v Auskoa Enterprises Ltd (2019) N7727
Walup v National Housing Corporation (2019) N8065
Wereh v Wamuk (2023) SC2487
Yalbees v Amaiu (2023) PGNC 320 (28 Sept 2023)
Yaman v Independent State of Papua New Guinea (20220) SC1942
Overseas Cases
Donoghue v Stevenson (1932) AC 562
Humpries v Cousins [1877] UKLawRpCP 7; (1877) 2 CPD 239
Rylands v Fletcher (1886) LR 1Ex265(first instance) and (1868) LR 3HL 330(on appeal)
References
Constitution, s155(4)
National Court Rules, O22 r11
Judicial Proceedings (Interest on Debts and Damages) Act 1962, ss4 and 6
STATEMENT OF CLAIM Trial on assessment of damages where the plaintiff sought to prove damages arising from negligence.
Counsel
Ms D Rikis, in person for the estate of the late plaintiff
Mr Kup-Ogut, for the First and Second Defendants
JUDGMENT ON ASSESSMENT OF DAMAGES
21st March 2024
1.BRE, AJ: INTRODUCTION: The plaintiff is suing her neighbour for sewerage overflow and spillage onto her family property over a continuous period over several years. The plaintiff obtained default judgment against the first and second defendants on 22 August 2022 after the defendants failed to file their Defence. The matter proceeded to trial on assessment of damages by affidavits with no cross examination.
BACKGROUND
2. The plaintiff and her family reside on Section 08 Lot 27 Tanatana Street in Boroko, National Capital District. The NBC own the property next door at Section 08 Lot 28, which contains three residential units to accommodate its staff. In 2005 the plaintiff started experiencing raw sewerage spillage onto her property from the defendants property. The defendants had tried repairing the pipes but it did not solve the problem.
3. Rore Ralph Rikis, initially raised the issues several times over the years to the defendants. By court order of 06 April 2022, Daphne Rikis continued the proceeding after her father's death when granted Letters of Administration on 28 September 2021 to administer the estate of the late Ralph Rore Rikis.
4. Late Rore Ralph Rikis filed this proceeding on 25 April 2018. The statement of claim was amended on 9 May 2022 to reflect changes in status of the plaintiff and the letters of administration. The statement of claim was further amended on 12 May 2022. The further amendment also reflected the removal by Court order of 29 April 2022 of the third and fourth defendants who were the Minister for State Enterprises and the State respectively. Throughout this time, Daphne Rikis was self-represented.
PLAINTIFF'S CLAIM
5. The plaintiff's claim is that the defendant is liable for sewerage overflowing from its property onto the plaintiff's property
next door which caused pollution, suffering and inconvenience over a long period of time resulting in the soil in the property becoming
contaminated and the family having to physically relocate and rebuild the house to another part of the property.
6. The plaintiff claims a total of K2,713,300.00 for reimbursement of costs incurred in addressing sewer leakage, specific and general damages in the statement of claim, amended and further amended statements of claim particulars of which are restated below:-
K2,713,300.00
DEFENDANT'S CLAIM
7. The defendants failed to file a defence to defend the proceeding. Default judgment with damages to be assessed was entered in favour of the plaintiff on 22 August 2022. The defendants contend that this proceeding should be dismissed in its entirety as it failed to disclose a reasonable cause of action and plead specific particulars of the damages sought. The defendants also produced evidence to refute liability on the cause of the sewerage spillage.
Plaintiff's evidence
8. The Plaintiff relies on the following evidence:-
1) Affidavit of Daphne Rikis on Assessment of Damages filed 03 March 2023 tendered into evidence and accepted as an exhibit marked "P1".
2) Affidavit of Daphne Rikis filed 14 July 2023 – the deponent deposed to technical survey details referred to in the affidavit of the defendants’ expert witness Bodie Llyod Kirori which was objected to by the defendants as Daphne Rikis is not an expert on the subject matter. Those aspects are not accepted into evidence particularly paragraph 3. Only factual matters as known by the deponent as contained in paragraph 7 and other factual matters are accepted. With these qualifications the affidavit of Daphne Rikis filed on 14 July 2023 is partially accepted into evidence with exception on technical aspects and is marked as "P2".
3) Affidavit of Daphne Rikis filed on 20 June 2023 tendered into evidence and accepted as an exhibit marked "P3".
Defendants evidence
9. The first and second defendants rely on the following evidence:-
SUBMISSIONS
Plaintiff's submission
10. The plaintiff produced evidence to demonstrate the extent of damage caused by the sewerage spillage and the hardship and inconvenience it caused her family including the numerous unsuccessful attempts with the NBC at resolving the issue. The plaintiff dispute the contributory negligence claim of the defendants.
First Defendants Submissions
11. The defendants raised arguments on the pleadings being defective in not disclosing a reasonable cause of action and pointed out discrepancies in the plaintiff's evidence pertaining to the root cause of the spillage.
As to the evidence, the defendants produced a map at annexure E, to the affidavit of Bodie Lloyd Kiori marked "D3", that the plaintiff had by their actions caused the manhole and drainage reserve in the vicinity of the two properties to be blocked and caused a backflow onto the defendants' sewers which filled up and spilled onto the plaintiff's property. The defendants allege that the plaintiff built structure over reserve drainage and covered up the manhole which affected the proper flow of the sewerage. The defendant relied on the tendered affidavits in support of their submissions.
12. As to the pleadings, Mr Kup –Ogut counsel for the defendants submitted that the proceedings should be dismissed in their entirety as both the original and amended Statements of Claim are defective and fail to disclose a cause of action nor plead specific particulars of the damages sought.
13. Mr Kup-Ogut relied on the Supreme Court case of Maku v Maliwolo (2012) SC1171 and several other caselaw to support his arguments that the defendants can raise the issue of defective pleadings even after default judgment has been obtained.
ISSUE
ANALYSIS
14. The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi J (as he then was) in the leading case of Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182 that:-
15. I will address first the objection raised by the defendants to the plaintiff's pleadings.
The NBC contend that although the statement of claim has been amended twice, negligence is not specifically pleaded and that no other cause of action known in law is pleaded.
The NBC submits that the 25 paragraphs of the statement of claim contain a chronology of events. The relief sought has not been stated in the main pleadings with damages not particularised. NBC submits it is difficult to understand what cause of action known in law is pleaded, that the pleadings appear to be based on the law of negligence or a breach of duty of care.
Ms Rikis in response referred to the affidavits being clear for the defendants to realise what the plaintiff is pleading and that the further amended statement of claim particularised negligence, and that the objection should have been raised earlier.
Upon my inquiry, counsel for NBC clarified that the issue of defective pleadings was raised earlier but the Court exercised its discretion to grant default judgment to the plaintiff. This Court's reasoning in granting the default judgment is published in Rikis v Nou (2022) N9864. I find that the defendant is having a second bite at the cherry, in regurgitating their arguments on defective pleadings which was already considered by the Court. Acting Judge Tamade found default in filing the defence and ordered default judgment despite noting that the pleadings were poorly drafted. Her Honour remarked that the plaintiff's claim seemed to be based on negligence.
The course of action available to the defendants after the inter-parte hearing is to appeal the default judgment decision where they are aggrieved by the decision. See Tedor v PNG Ports Corporation (2011) SC1137. The defendants have not appealed the default judgment. They cannot now raise arguments about the pleadings.
16. Picking up on the earlier remarks of the Court that a case in negligence subsists, and although I am not bound to, but for the purpose of completeness and to do justice, I will consider to an extent the defendant’s objections. I make a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity, the pleadings are reasonably clear and should not be such as to not make sense or would make an assessment of damages futile. See Mel v Pakalia (2005) SC790.
17. The law on pleadings has been settled in Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) SC694 that pleadings must provide sufficient clarity to ascertain what the triable nature of the dispute and triable issues are. In Mond v Okolo (1992) PNGLR 501, the court stated the purpose of pleadings is not to surprise the defendant. In Yalbees v Amaiu (2023) N10481 his Honour Narakobi J held in relation to a negligence claim at [13] and [14] that:-
"Whilst desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What
is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the
defendant on notice as to the claim that it has to meet: Yakasa v Piso (supra); Kuman v Digicel (PNG) Ltd (2013) SC1232.
Though the duty of care element was not expressly pleaded, the statement of claim was drafted in sufficiently clear terms to put the Second Appellant on notice that it was required to meet a claim in negligence and the elements of that claim: Yakasa v Piso (supra); Kuman v Digicel (PNG) Ltd (2013) SC1232 applied."
18. The law of negligence emerged from the neighbour principle espoused by the English case of Donoghue v Stevenson (1932) AC 562, which has been adopted as part of the common law in our jurisdiction on independence. The elements of negligence involve owing a duty of care to the neighbour, which has been breached and has resulted in suffering or loss. The writ of summons and statements of claim should give rise to a cause of action known in law. See Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337.
19. For this particular case, the English case of Humpries v Cousins [1877] UKLawRpCP 7; (1877) 2 CPD 239 is on point. The case concerned a sewerage leakage from adjoining houses where an old sewerage drain started under the defendants premises and passed under several houses before turning back under the defendant’s house. The old drain became decayed and sewage escaped and flowed into the plaintiffs cellar and destroyed it. The defendant was unaware of the return drain nor its want of repair. The Court held that the:-
“defendant’s duty was to keep the sewage which he himself was bound to receive from passing from his own premises to the plaintiff’s premises otherwise than along the old accustomed channel, and that this duty was independent of negligence on his part, and independent of his knowledge or ignorance of the existence of the drain.”
The Court made the following remarks at page 246, in relation to the defendant’s duty to controlling or securing the containment of the spill on his premises which I find useful and applicable to this case:-:
“ The question whether the defendant was bound, as between
himself and the plaintiff, to repair the drain, or so much of it as
ran under the defendant’s land, was much discussed, but does not
really arise; for, the plaintiff’s cause of action ...is, not that the defendant omitted to repair the drain, but that he omitted
to prevent the sewage on his land from coming on the plaintiff’s land otherwise than as the plaintiff was bound to receive
it. If the defendant had prevented the sewage from so
coming, the plaintiff would have had no cause of action, whether
the drain was repaired by the defendant or not.”
20. While I note the evidence of the defendant from its building officer Kalie Koko at paragraph 18 and 20 of his affidavit marked D1, is that there were efforts by the defendants to fix the sewage pipes, the sewage still overflowed. I consider this a relevant factor in assessing damages.
21. The plaintiff is entitled at law to the quiet use and enjoyment of its land. The plaintiff alleges that the use and enjoyment of their property by the discharge of raw sewage from the defendants property has caused much loss and suffering.
This is a classic Donoghue v Stevenson case of a dispute amongst neighbours which is the foundation of the rule on standard of care and negligence.
The rule of liability for the escape of dangerous things was first considered by Rylands v Fletcher (1886) LR 1Ex265(first instance) and (1868) LR 3HL 330(on appeal), which has been expanded to include dangerous things[1] like water, gas, dangerous animals, sewage etc,.
In Yaman v Independent State of Papua New Guinea (2020) SC1942 the Supreme Court clarified:-
"Negligence is a common law principle which we have adopted that is based on the notion of conduct that is injurious to a neighbour. It revolves around what a reasonable person should or should not do that might result in harm or injury suffered by his neighbour."
22. In examining the writ of summons and the amended statements of claim, I agree the plaintiff has set out a chronology of events but am not satisfied that it is vague or unclear as to the cause of action. The statements of claim reveal that it is a claim about the defendants breaching their duty of care to the plaintiff, their neighbour, to contain waste and ensure no overflow or spillage onto the neighbour's property.
Further, I consider the case authorities cited above on pleadings and am of the view that the cause of action can be gleaned from perusing the pleadings and the evidence of both parties and especially that of the defendants which clearly demonstrate that they are not doubtful, confused or not understand the cause of action.
The defendants led evidence to rebut the plaintiff's evidence about the cause of the sewage overflow. This demonstrates to me that the defendants understand the plaintiff's cause of action and were not ambushed, caught by surprise or unable to defend themself. The statement of claim when read as a whole is an action in negligence and if I am to be more particular one of private nuisance.
23. Further, the entry of default judgment from a failure to file a defence after inter-parte arguments, are relevant factors that support refusing arguments on the cause of action and liability at this late stage of the proceeding. The Supreme Court in accepting the principles summarised in Coecon and reaffirmed in Mel v Pakalia held that "...once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven."
24. Aside from the defendant’s claim on defective pleadings, the defendants' adduced evidence to disprove liability by alleging contributory negligence by the plaintiffs. To prove contributory negligence, the defendants produced a map marked as annexure ‘E’ to Bodie Lloyd Kirori’s affidavit marked ‘D3’. The map is of sewer and boundary lines showing the manholes located near the two properties.
Generally the plaintiff's claim is regarded as proven except to any contributory negligence that the defendant's evidence may disclose.
However, since the defendants have not filed any defence, the defence of contributory negligence is not to be considered as it has to be pleaded before evidence and submissions can be made on it. See Opi v Telikom PNG Ltd (2020) N8290. On that basis the allegation of contributory negligence asserted by the defendants is disregarded.
25. Overall, it is my judgment that liability has been confirmed by the default judgment and the defendants are negligent in their actions or omissions resulting in the overflow of raw sewage onto the property of the plaintiff. I am satisfied that, the pleadings supports a claim in negligence. Liability and the defence of contributory negligence should not be revisited where no defence has been filed. The plaintiffs claim as pleaded is regarded as proven. The defendants are liable for damages caused to the plaintiff for the adverse impacts to the enjoyment and use of their property.
2) Whether the plaintiff is entitled to the damages sought?
26. The plaintiff has the onus of proving the damages claimed. The plaintiff is seeking a global amount of K2,713,300.00 for general and specific damages. The plaintiff has pleaded fixed amounts under each heads of damages but must prove the expense or cost incurred with source documents. The plaintiff is seeking reimbursement of costs incurred for maintaining sewage pipelines, scientific investigations and medical expenses totalling K362,300.00, amongst other claims.
However, the plaintiff has not produced evidence in the form of payment receipts, delivery notes, bank statements, etc, to substantiate the costs incurred with source documents.
27. The plaintiff provided sufficient evidence during the hearing to demonstrate on a balance of probabilities that the sewage overflowed onto their property which resulted in the plaintiff and family removing their house and relocating to another part of the property. Unfortunately, no evidence of costs incurred in labour and material costs was produced to support the damages sought of K450,000.00 in relief 5.
28. The affidavit of Daphne Rikis marked "P1" attaches a property valuation report at annexure 'G' which clearly shows the property depreciated in value by K500,000.00 between the periods 16 March 2015 and 11 October 2022. This valuation report has not been contested by the defendants. I accept this evidence as a direct loss in the property value caused by the sewage flow onto the plaintiff's property.
29. Daphne Rikis has been self-represented and has made two amendments to the statement of claim. One of the pitfalls for self-representation is focusing on matters that are not relevant. While Daphne Rikis did a good job in representing herself thus far, she focused more on contesting the defendant's evidence and proving liability, which is not relevant during assessment of damages hearing especially, when the defendants have already raised these arguments during the default judgment application and failed. The plaintiff did not provide source documentary evidence on the costs incurred in addressing the nuisance caused to them by the defendants of the spilled sewage for most of the relief sought.
30. Does this mean the plaintiff is without a remedy? I do not think it is just, for the plaintiff to be left without a remedy. This Court has an inherent jurisdiction vested to it by s155(4) of the Constitution to do justice as seems proper in the circumstances, and I invoke that power to consider appropriate damages that may be awarded to the plaintiff.
In doing so, I am guided by the principles in Mel v Pakalia and Kunong v Paradise Private Hospital (2022) N9698 at [50] and [51] in considering the appropriate damages to award the plaintiff.
31. The Supreme Court in Mel v Pakalia, set out the following principles in assessing damages:-
(Emphasis added)
32. In Waisime v Auskoa Enterprises Ltd (2019) N7727[2], the court proceeded to award damages under certain heads of damages in the interest of doing justice where the pleadings where insufficient and the source evidence was not provided but the cost incurred mentioned in affidavits were accepted. The Court considered the difficulty in assessing some heads of damages where no evidence was provided and invoked the Court’s power to do justice by applying certain amounts awarded in prior cases, the parties concession on some items and its reasonable judgment to award damages. The court remarked at [45]:-
“On the other hand, damages have been assessed in some case and allowed on skeleton pleadings in order to do justice. I am prepared to take the latter approach and do what I can base on the poor pleadings and lack of proper and helpful submissions from the Plaintiffs’ lawyers to allow for damages reasonably flowing from the Defendants trespass and not covered by the already assessed and allowed damages for mesne profits.”
33. Further, in Kunong v Paradise Private Hospital (2022) N9698 at [50] and [51], the Court stated that general damages are compensatory in nature, they are intended to restore the person as nearly as possible to his/her original state under the principle of restitution in integrum. In considering the principles to assess damages his Honour Shepherd J, stated that the Court should also consider the prevailing circumstances, economic conditions of the country, similar awards in similar cases and inflation in considering appropriate damages to be awarded.
34. Based on these case authorities, I consider relevant, the following factors in guiding my deliberations in assessing damages; damages awarded in similar cases, any amounts deposed in affidavits tendered and to exercise reasonable judgment given the circumstances of the case and current economic conditions of the country, where applicable.
35. In terms of similar caselaw, I have not found a lot of PNG cases on sewage spillage but refer to Seeto v NGIP (2019) N8137 where dangerous chemicals and contaminated water were discharged into the plaintiff's property. The court found the plaintiff suffered substantial inconvenience and awarded general damages in the absence of any similar case references, of an amount of K20,000.00. The Court held at [44]:-
"In the circumstances of this case, given the substantial inconvenience to the Plaintiff that occurred, it would be unjust not to award any relief. The inconvenience the Plaintiff suffered should attract some damages given that the inconvenience endured was for a long time. I consider general damages in the amount of K20,000 to be fair and just. I will therefore award K20,000 as general damages. I do not find that punitive damages are warranted."
(Emphasis added)
36. The claim in Seeto was based on trespass, mesne profits, damages for denial or obstruction of road access, value of converted fencing materials, general damages and or punitive damages for nuisance and escape of dangerous and harmful water waste.
37. Given the strength of the case authorities, I now proceed to consider each prayer for relief and assess damages accordingly.
38. Reimbursement for expenses incurred has to be proved with source documents of the payments made such as payment receipts, bank statements, confirmation by supplier of services rendered etc,. The plaintiff has not produced any source documentary evidence for payments made for relief 1 and 3 to seek reimbursement. Relief 3 is dismissed, relief 1 is considered with relief 5 and 7.
39. However, for relief 2, the plaintiff has produced a scientific report from SGS Limited dated 5 June 2015 annexed 'F' to exhibit 'P1'. There is no direct evidence of costs incurred in sourcing this report. The prayer for relief claims K2,300.00, Daphne Rikis affidavit annexes the report which confirms the report was done. I consider K2,300.00 is reasonable and accept it as the cost paid for the report. The plaintiff is awarded K2,300.00.
4) Compensation for loss of Pets a dog and two (2) cats in the sum of K1,000.00
40. The plaintiff has not provided evidence to prove loss or emotional attachment to pets. Further, this prayer for relief has not been pleaded. The plaintiff has not indicated in the pleadings how the pets have been affected and what state they were in. To claim the relief, it must be pleaded. No damages are awarded under this head.
5) Compensation and reimbursement for unplanned demolition and relocation expenses of the house to a new site within section 8 Lot 27 Tanatana Street, Boroko NCD in the sum of K450,000.00
41. Under this head and relief 7 and 1, I accept Daphne Rikis evidence about the devaluation of the plaintiff's property between the periods 16 March 2015 and 11 October 2022 is K500,000.00 in the absence of any contest, and award compensation of that amount which I consider fair to also cover relief 1 and 7. I accept the photographic evidence and power point video presentation by the plaintiff during hearing showing the state of the property with the sewage run off which showed it entered the yard and lawn of the property. However, the plaintiff has not provided any source documents such as payment receipts and labour costs or bank statements for the relocation of the house costing K450,000.00.
I consider the award in the amount of the devaluation should be sufficient to remedy the situation and compensate the plaintiff for the nuisance caused by the discharge. In doing the best I can to ensure justice is done and in light of no source documentary evidence to prove the respective headings of damages sought in relief 1 and 7, I award the sum of K500,000.00 for the damage caused to the plaintiff's for its use and enjoyment of the land and relocation costs in the absence of any direct evidence.
6) Compensation for inhaling the odor smell pollution by the Plaintiff daily lives in the sum of K400,000.00
42. The plaintiff has not provided any direct evidence to prove it is entitled to K400,000.00 under this head. Doing the best I can, I consider useful a report dated 06 June 2023, by the defendants’ engineers which recommend amongst other things, settling with the plaintiff for the effluent smell at between K35,000 to K50,000.00 in paragraph 6(e) of the affidavit of Bodie Lloyd Kirori filed on 17 July 2023 marked 'D3'. Apart from this, I have not taken into account other aspects of the report concerning contributory negligence which I have rejected earlier.
43. I take the recommended amount as a useful indicator for damages under this relief. Considering the length of time the plaintiff and family had to put up with the nuisance of the sewage overflow and its stench. I consider an award for damages of the higher amount of K50,000.00 for damages to be reasonable.
7) Compensation for loss of use, benefit and enjoyment of the original home site on section 8 lot 27 in the sum of K450,000.00
8) Compensation for suffering, pain, stress worries and psychological emotions in the sum of K350,000.00
44. For relief 7, there is no evidence of the amount of K450,000.00 alleged to be incurred by the plaintiff. The plaintiff must produce evidence to substantiate its claim. The plaintiff cannot just state any amount in the prayer for relief and expect the Court to accept it. Damages sought under relief 7 is considered in the same basket as relief 1 and 5 for K500,000.00 taken from the property valuation report as reasonable compensation to cover these losses.
45. In terms of damages for stress and anxiety, any medical evidence of the effect of stress on Ms Rikis or its effects on her late father or other family members has not been produced. Caselaw in our jurisdiction has established a nominal amount of up to K5000.00 as damages for mental anguish and stress where there is no evidence. See Walup v National Housing Corporation (2019) N8065 and Wereh v Wamuk (2023) SC 2487. No evidence has been led too on the number of long term occupants of the plaintiffs property who may have suffered stress and anguish. As such, I award K5000.00 being the maximum nominal amount.
9) Compensation for business and economic loss from the date of filing of the Writ of Summons to the date of this order in the sum of K400,000.00
46. The plaintiff has not led any evidence of any business loss in terms of the type of business activity undertaken by the plaintiff, amounts of sales income earned over what period, business records of income before and after etc., Also, this proceeding is by an individual not a company, evidence of sole proprietorship and appropriate pleadings are absent. If the plaintiff was paying taxes on the business income, copies of the tax return could easily be produced from records kept by the Internal Revenue Commission to substantiate this claim. The plaintiff has not adequately pleaded nor sufficiently discharged the onus of proof on a balance of probabilities and is not entitled to business and economic loss of an amount of K400,000.00 as claimed.
10) Compensation for damages from the date of filing of the writ of summons to the date of this order in the sum of K300,000.00
47. This head of damages claimed is vague. There is lack of clarity as to what items of damages this relief is seeking. The aspects of damages it may be referring to are not sufficiently particularised. This relief is not supported by pleadings and not proven on a balance of probabilities, the claim fails.
11) Interest of 8 percent per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 1962.
48. Interest where the State is a party is to be awarded at 2 % pursuant to sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 1962. The State was a party to this proceeding until it was removed on 29 April 2022. The defendants are a State agency and the reduced interest rate of 2% applies. Generally, an agency is considered the State where it is created under statute. NBC is a creature of statute. See PNG Power Limited v Augerea (2013 SC1245 and Niugini v NHEL (2020) SC 1985.
The evidence from the plaintiff shows the plaintiff’s pleas where unresolved despite numerous attempts. The plaintiff claims the sewage spillage started in 2005 but have not provided sufficient evidence, either way this time period is statute barred and disregarded.
51. Given these evidence, I consider appropriate in the circumstances an
award for pre-judgment interest from the 17 January 2017 being the date a formal complaint was filed with the city authority, to the
date of decision, 21 March 2024 which comes to 2621 days. The pre-judgment interest is awarded at K78,989.00 which is 2% of general
damages of K550,000.00 from 17 January 2017 to the date of this decision, 21 March 2024.
52. Using the interest calculation by his Honour Shepherd J, in Seeto v Dekenai Constructions Ltd (2023) N10172, I apply 2% interest on general damages of K550,000.00 which is K78,989.00, computed by applying the formula:- D x IR x (N/365) = I, where:-
D is the principal amount of general damages, IR is the applicable
percentage rate of interest per annum, N is the number of days expressed as a percentage of years and I is the amount of interest:-
K550,000.00 x 2% x (2621/365 days) = K78,989.04 rounded off is K78,989.00
53. Post-judgment interest is discretionary and allowed by Section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(1) of the National Court Rules, given the considerations above, I award post judgment interest at the rate of 2% per annum on the whole or part of the total judgment amount of K636,289.00 that remains unpaid.
54. The Judicial Proceedings (Interest on Debts and Damages) Act 2015 being an Act of Parliament supersedes the Order 12 rule 6(2) NCR which prescribes 8% because, the defendant is a State agency and sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 requires 2 % to be applied on pre and post judgment damages award. Hence an interest rate of 2% is applied for pre and post judgment interest.
COST
55. Costs are discretionary and are to be considered judiciously and usually follow the event. See O22r11 NCR. The successful party is entitled to recover their costs from the unsuccessful party. Self-represented litigants are entitled to reasonable costs in litigating the case but not on the rate of a lawyer's professional costs. The rate for the costs can be agreed between the parties or subject to taxation, costs includes disbursements. In doing so, regard must be had to the plaintiff's employment if any, and to consider whether or not any remuneration has been lost as a result of focusing attention to the conduct of the case. See Karingu v Papua New Guinea Law Society (2001) SC674.
FORMAL JUDGMENT
56. The formal judgment of the Court are as follows:-
(1) Judgment is entered for the plaintiff in the sum of K636,289.00 comprising:
(a) General damages (relief 1, 5 ,6 and 7): K 550,000.00
(b) Special damages (relief 1 and 8): K 7,300.00
(c) Pre-trial interest on above damages: K78,989.00
Total of Judgment: K636,289.00
(2) Post-judgment interest shall accrue at the rate of 2% yearly on so much of the sum of K636,289.00 being the aggregate of the above general damages and special damages, as remains unpaid from time to time.
(3) The defendant shall pay the plaintiff's reasonable costs for this proceeding, including all costs previously ordered to be paid by the defendant, to be agreed if not taxed. Such costs shall include any loss from any employment occasioned by the late Rore Rikis or Daphne Rikis because of litigating this matter and include out of pocket expenses or disbursements necessarily and reasonably incurred for the conduct of the case from the date of filing this proceeding, 25 April 2018 to the date of this decision, 21 March 2024.
(4) The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place, forthwith.
Judgment and Orders accordingly,.
__________________________________________________________________________________
Daphne Rikis in person for estate of the plaintiff, late Rore Ralph Rikis.
Kup-Ogut Lawyers: Lawyer for the First and Second Defendants
[1] See Charlesworth & Percy on Negligence Sweet & Maxwell 2010 at paras 13-07 pg 975 and para 13-10, pg976
[2] This case was appealed but only on three grounds to do with the type of relief awarded not the principles considered in granting the awards. See Pacific Trade International Ltd v Waisime [2020] PGSC 20; SC1935 at [6].
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