N1272

PAPUA NEW GUINEA
[In the National Court of Justice]

WS143 OF 1993

JOHN TUINK SALAMON & OS
Plaintiffs

V

THE STATE
First Defendant

GEORGE WAGULO
Second Defendant

YEPERE KAUGUPE
Third Defendant

JAMES KUA
Fourth Defendant

ESSAU KERYAL
Fifth Defendant

Mount Hagen: Woods J
6 September 14 October 1994

Wrongs by the State - Police operation against a village - Destruction and damage to buildings and property - Loss of profits of tradestore operation - Standard of proof - evidence of value - Considerations in uncontested cases - Duty of the Court.

Breach of Constitutional Rights - Exemplary damages - independent discretion rule.

A Manase for the Plaintiffs
No Appearance for the Defendants

14 October 1994

WOODS, J: This is a claim for damages following a Police raid on Kumbasakam Village Wapenamanda on the 5th July 1992 when houses and buildings were looted and destroyed and other property destroyed or damaged. The State and other Defendants have not disputed the action nor given any legal right to cause such damage and destruction so the action must be deemed to be unlawful and therefore the State and the other defendants must be deemed to be liable for the loss and damage caused. Judgement was signed in default against the defendants and the matter has come before the court for the assessment of the damages. The claims have been presented and itemised by family groups and are claims for loss and damage to property and damages for breaches of Constitutional rights and also exemplary damages. 

The evidence presented to the court was a detailed analysis of the damage and loss to each family unit with some photographs of burnt building ruins. I will deal with each analysis.

Mr & Mrs Senior Tuink claimed for the loss of their house and personal possessions assessed at K1,861.25. I am satisfied on the basis of their affidavit that that assessment is reasonable.

Mr Dia Pindia claimed for loss of a house and personal possessions assessed at K7,780.00. I am satisfied on the basis of his affidavit that that assessment is reasonable.

Mr Sapulo Lai claimed for loss of a house and personal possessions assessed at K3,271.00. I am satisfied on the basis of his affidavit that that assessment is reasonable. 

Mrs Yambame Salamon claimed for loss of a house and personal possessions and pigs assessed at K4,068.00. I am satisfied on the basis of her affidavit that that assessment is reasonable. 

Mrs Tipink Minak claimed for the loss of a pig valued at K800.00. I am satisfied on the the basis of her affidavit that that assessment is reasonable.

Mrs Dink Lanya claimed for the loss of pigs valued at K1,300.00. I am satisfied on the basis of her affidavit that that assessment is reasonable.

Mr Kenopia Tuink claimed for the loss of a pig valued at K800.00. I am satisfied on the basis of his affidavit that that assessment is reasonable. 

Mrs Kopame Ima claimed for the loss of pigs valued at K1,100.00, I am satisfied on the basis of her affidavit that that assessment is reasonable.

Mr Nita Lyanda claimed for the loss of pigs valued at K600.00. I am satisfied on the basis of his affidavit that that assessment is reasonable.

Mr Terep Pupu claimed for the loss of a tradestore and goods and pigs assessed at K4,700.00. I am satisfied on the basis of his affidavit that that assessment is reasonable.

Mr Wik Tambaia claimed for the loss of goods and possessions lost when his store was ransacked by the police. I am satisfied on the basis of his affidavit 
that that assessment is reasonable. 

John Tuink Salamon claimed for the loss of houses and a tradestore, loss of personal possessions and tradestore goods, and damage to a vehicle. He is also claiming for loss of business profits since the incident. Whilst I am satisfied on the basis of his affidavits that the assessment is reasonable with respect to the houses and buildings, and personal possessions, and also the vehicle damage, there is one aspect of the tradestore goods which I feel needed more evidence and this is interrelated with the claim for loss of profits. Included in the tradestore goods is K12,785.00 for stock of cigarettes. That seems to be a large item for a tradestore and suggests more than just a mere convenience village trade store. Whilst the court may be lenient with strict evidentiary matters with village claims once you are claiming for what are major economic activity enterprises the court is entitled to insist on proper evidence in the nature of ledgers and account books and even taxation returns to comply with the modern laws. The Plaintiff says that all his records were lost in the destruction of the store however with modern activities there are copies and other records such as copies of documents with the suppliers of substantial quantities of goods such as this large claimed amount of cigarettes. There is an affidavit by an Accountant Ariel Adraincem to support the plaintiff’s claim but he did not appear to be the plaintiff’s regular accountant who looked after the plaintiff’s business records but rather gave a series of trading assumptions based on what the plaintiff told him and there was no reference to actual business records from anywhere. The Courts cannot find a judgement based on mere assertions or assumptions. Whilst I will accept the fact that there is enough evidence to suggest a reasonably well operating tradestore and therefore some moderate loss in the short term. Then of course there is an obligation in modern enterprises to mitigate and insure and rebuild on insurance. The other party cannot be penalised for a person’s failure to follow normal business practice and insure. I will allow a figure of loss of profits of K1,000.00 per month for a reasonable time namely 3 months.

I therefore allow for the loss of the buildings, personal possessions, damage to vehicle and loss of some tradestore goods to a value of K28,094.00. I will also allow K3,000.00 for loss of profits. 

On the claim for breach of Constitutional Rights I will consider that heading together with exemplary damages. Exemplary damages are a matter of special consideration and have generally been regarded as a mark of public censure against excessive misconduct. They are not to unjustly enrich a party but rather are symbolic of the public’s indignation. In cases like this where police have obviously acted too strongly, unless there is clear Government policy or directive for the police to act how can the People as embodied in the Preamble to the Constitution as the State be punitively responsible for conduct which is really conduct in the independent discretion of the individual police officers involved. This court has no hesitation in finding that the State will be liable for the actual property loss caused by its officers, but how can we find that the State is also liable for the punitive aspect of the action which is really action that came from the mind of the protagonists. So whilst the independent discretion rule does not apply for the tortious damage it can still apply when considering exemplary damages and breach of Constitutional Rights. There are named Police officers in this writ who were also named in the evidence and therefore the awards for Breaches of Constitutional Rights and Exemplary damages will be made against those named police officers. 

I will assess an amount of K2000.00 per person against the second to fifth defendants for Breaches of Constitutional Rights and Exemplary Damages for those persons who had houses destroyed or looted. I will assess an amount of K1000.00 per person against the second to fifth defendants for these headings for those persons who only had pigs destroyed or taken. With respect to John Tuink Salamon and Dia Pindia I will increase the award for them to K4,000.00 to cover the additional action against them namely the assault and unlawful imprisonment. 

I will allow interest at 8 percent on the amounts awarded from 21 April 1992 to date. 

To summarise:

NAME	LOSS	INTEREST	CONST RIGHTS & EXMP.	INTEREST	
Senior Tuink	K 1,861.25	K 220.70	K2000.00	K 237.00	
Dia Pindia	K 7,780.00	K 922.48	K4000.00	K 474.00	
Sapulo Lai	K 3,271.00	K 387.87	K2000.00	K 237.00	
Yambame Salamon	K 4,068.00	K 482.43	K2000.00	K 237.00	
Tipink Minak	K 800.00	K 94.80	K1000.00	K 118.50	
Dink Lanya	K 1,200.00	K 142.28	K1000.00	K 118.50	
Kenopia Tuink	K 800.00	K 94,80	K1000.00	K 118.50	
Kopame Ima	K 1,100.00	K 130.41	K1000.00	K 118.50	
Nita Lyanda	K 600.00	K 71.23	K1000.00	K 118.50	
Terep Pupu	K 4,700.00	K 557.28	K2000.00	K 237.00	
Wil Tambaia	K 1,459.00	K 173.04	K2000.00	K 237.00	
John Tuink Salamon	K31,094.00	K3686.96	K4000.00	K 474.00	
TOTALS	K58,733.25	K6,964.28	K23.000.00	K2725.50	

I Order Judgement against all five defendants in the sum of K65,697.53.

I Order judgement for a further amount of K25,725.50 being the compensation for Breaches of Constitutional Rights and Exemplary Damages against the second, third, fourth, and fifth Defendants.

Further interest will run at 8 percent on any of the Judgement amounts that are not paid after 14 days from the service of the Orders for Judgement.

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Lawyer for the Plaintiffs: Pato Lawyers