Paraia v Yansuan, as Police Station Commander (Porgera) [1995] PGNC 25; N1343 (29 June 1995)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

WS 317 OF 1994
BETWEEN
JONATHAN MANGOPE PARAIA
PLAINTIFF
AND
INSPECTOR JACOB YANSUAN AS THE POLICE STATION COMMANDER (POGERA)
FIRST DEFENDANT
AND
CHIEF SUPRINTENDANT FRED SHEEKIOT AS THE PROVINCIAL POLICE COMMANDER
SECOND DEFENDANT
AND
THE POLICE COMMISSIONER
THIRD DEFENDANT
AND
THE STATE
FOURTH DEFENDANT

CIVIL LAW - Damages - Proof of - Duty of plaintiff to prove damage - semi permanent L40 type house built in village environment burnt down by policemen in police raid - Evidence of value of house vague or inconsistent - Duty of Court to determine probable value of house and award reasonable damages.

INJIA J: This is a trial on assessment of damages following default judgment. The action arises out of a police raid on Paiam village, Pogera, Enga Province on 29 June 1993 following the fatal shooting of a policemen by warring clansmen. A combined police operation of policemen from various parts of Enga resulted in widespread destruction of property, looting and the fatal shooting of one man. The plaintiff in this case is the President of the Pogera Local Government Council and a businessman in the Pogera District. There is no dispute that his semi permanent house situated at Paiam village was burnt down in the raid. The plaintiff’s claim is for damages for the loss of the house and its contents as well as exemplary damages and interest. The trial on assessment of damages is contested by the defendants. The main dispute is as to the value of the L40 type house. I will deal with the value of the house first.

The plaintiff’s case is that the house was valued at K40,000.00 inclusive of labour and transportation cost. The house was built in 1992. The plaintiff gave evidence first. He said he had legal title over the land on which the building was situated. The plaintiff in his oral evidence and in his affidavit makes a “conservative” estimate of K40,000.00 of which K6,700.00 was for the cost of labour. As to the cost of the materials, he left it to the carpenter who built the house to give evidence of.

The second witness was the carpenter, Mr James Lero from Southern Highlands Province. His evidence consists of an affidavit on which he was cross-examined by the defendant’s counsel. He is a carpenter with 2 years experience. He had obtained a Vocational School Certificate in 1988 specialising in carpentry. He had worked with various construction companies prior to building this house. At the time he built the house, he was employed by Enga Builders. He used his own tools except for an electric saw, electric plane and dumpy level which were supplied by the plaintiff. The building took 2 1/2 months to complete. He engaged 5 other employees whom he supervised. His labour charge was K2.00/hour and the labourers rate was K1.00 per hour. The house he built was a L40 type four bedroom house. However, there is no evidence he used a house plan. Total cost of the house was K40,000.00 which excludes security fees and cost of fencing the property. Of, the K40,000.00, K5,000.00 was for labour costs, K3,500.00 for transportation cost, K3,500.00 for site preparation and equipment hire and drainage fees. The method of purchase of materials was that the plaintiff retained all monies and paid to various persons whose goods or services were acquired as the occasion arose. All the receipts were kept by the plaintiff but were all burnt in the fire. Most of the major purchase of materials were made from established suppliers in Mt. Hagen with only little materials purchased at Pogera. A dyna truck and a tipper truck was hired to transport the materials. After the house was completed, he was allocated one room of the house where he stayed and looked after the house. He was still living in the house when it was burnt down.

The third witness called by the plaintiff was Moses Linonge. He was then the District officer for Pogera with some 8 years experience in the Pogera District. He had seen the house from the road outside. His conservative estimate was K50,000.00 - K70,000.00. His estimate was based on his view of the type of house, his own knowledge of things and his knowledge of the plaintiff as a businessman and Council President, as a person who was capable of building and owning such a house.

The fourth witness was Mr Herman Yongapen. He is a District Officer based at Pogera at that time. He had prior experience in carrying out investigations in police raid of villages in several districts in the Enga Province. He had experience in assessing the value of properties destroyed including 2 L40 type semi-permanent house on previous occasions. His estimate of a L40 type house in Enga is K50,000.00 - K60,000.00. His estimate of the plaintiff’s house from seeing the house from the outside, from the main road, was K40,000.00. This decreased value was based on the fact that the plaintiff did not involve a qualified carpenter and that the house was built on land owned by him.

The defence called Mr Mika Rek. He is the Senior Works Supervisor with the Department of Works in Mount Hagen. He is a qualified tradesman specialising in building construction. According to Mr Rek, depending on the location of the building, a L40 type house would cost K35,000.00 for labour and materials and transportation costs but this value excludes the value of land. Generally speaking, carpenter of 3 years experience can produce 70% workmanship, especially if the house is built in the village and the work is not supervised and inspected by a supervisor.

It is submitted for the plaintiff that on the evidence, the Court should find that the house was valued at K40,000.00. The State submits that, on the evidence, the proper value of the house is something less than K35,000.00. The defendant seems to infer that 70% workmanship of K35,000.00 would reduce a L40 type house to the value of K24,500.00.

There are several unsatisfactory aspects of the evidence as to the value of the house, especially in relation to the evidence produced by the plaintiff. First, the house is a modern semi-permanent L40 type house. It was built in the space of 2 1/2 months involving substantial expenditure of money. The plaintiff is an educated and affluent member of the Pogera community and is no doubt capable of financing a L40 type house. Yet not one receipt has been produced in evidence to support his case. He says all the receipts were kept in the house and were burnt in the fire which destroyed the house. Accepting this to be so, I do not think it is impossible to locate carbon copy receipts at major supply stores for major purchases made in 1992/1993. All the major purchases of materials for the house were made in established supply stores in Mount Hagen and it would not be so difficult to locate carbon copy receipts for some of the major purchases.

Secondly, the building involved substantial payments of money within a period of say not less than 2 1/2 months. There is no evidence whether the payments were made in cash or by cheque. It is normal to find such vast amounts of money coming from a bank account operated by a person in the position of the plaintiff. The plaintiff has not produced one financial banking documentation which supports his story.

Thirdly, the house was built by a qualified carpenter who had previous work experience. Yet he has not produced any evidence of any specific house plan he used to build this house. All he says is it was a L40 type 3 bedroom house.

Fourthly, the carpenter was engaged to construct the house for which he and his employees were paid at a commercial rate for their labour. The carpenter is from Southern Highlands Province whereas the plaintiff is from Enga Province. Yet he was allocated one room in the house and was looking after the house for the plaintiff when the house was destroyed. Was he really paid at a commercial rate for his labour or was he paid at a “wantok” rate? Was he really paid K5,000.00 by the plaintiff?

Fifthly, which person or firm was engaged for site preparation? What kind of machinery or equipment was used and at what charge out rate?

The plaintiff is claiming damages for the destruction of this house by the fourth Defendant through its agents and servants. The onus in on the plaintiff to prove, on the balance of probabilities, the damage. As Lord Goddard CJ said in Bonham-Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177 at 178:

“Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying: ‘This is what I have lost, I ask you to give me these damages.’ They have to prove it.”

In the instant case, all that the plaintiff has done is described his house as a L40 type house whose value ranges between K40,000.00 - K50,000.00. The evidence of the plaintiff and Mr Lero as to the cost of labour and other materials is also vague and inconsistent. For instance, the plaintiff say he was paid K5,000.00 for labour whereas the plaintiff says the cost of labour was K6,700.00. Even on the combined effect of the evidence produced by the plaintiff and the defendant, I am still left pondering as to what the real value of the house is. The evidence produced by both parties merely give conservative estimates of the value of the house without any reference to the particular kind of materials used and their costs. The sum of K40,000.00 is a substantial amount of money. It must be substantiated with proper evidence by the plaintiff. The fact that the plaintiff’s house was situated in a village environment does not necessarily relieve the plaintiff of his duty to provide proper evidence especially when the house is said to be a modern semi-permanent L40 type house situated on land on which the plaintiff has legal title to it.

On the evidence, however, I am satisfied that a modern semi-permanent three bedroom house was burnt down, the exact value of which is uncertain. The plaintiff is entitled to damages, he cannot be allowed to go without a remedy. As Vaughan Williams LJ put it in Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 at p. 792:

“The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.”

In the circumstances of the instant case, it the duty of the Court to arrive at a probable value of the house. As Devlin J said in Biggin v Permanite [1951] 1 KB 422 at 438:

“Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can.”

I am no expert in assessing the value of a house of this kind. But the value I intend to allocate to the house will, I believe, fairly compensate the plaintiff. In order to introduce some marginal degree of certainty into my assessment, I will do it this way. I will take the average of K40,000.00 (relied on by the plaintiff) and K35,000.00 (relied on by the defence) and reduce the average amount thereof by 50% for poor workmanship and for the possibility of reduced amount of payment for labour and materials. My calculation comes to K18,750.00. I award the same.

The defendant disputes the building materials kept under the house which were burnt on the basis that it might amount to a double-claim. However, I am satisfied that they were left-over materials from the house and I am inclined to award the sum of K2,500.00 claimed by the plaintiff. This amount will be reduced by 50% for the likelihood of lesser purchase price been paid, in the absence of any receipts. The plaintiff will receive K1,250.00.

The plaintiff claims K1,500.00 for 6 pieces of cushion chairs. This is not contested. Again no receipt have been provided. I will deduct 50% for depreciation and likelihood that a lesser purchase price may have been paid. The plaintiff will recover K750.00.

The plaintiff claims K1,500.00 for TV screen and recorder set. This is not disputed by the plaintiff. However there is no receipt to confirm the purchase price. I will deduct 50% for depreciation and the likelihood that a lesser price may have been paid. The plaintiff will receive K750.00.

There is no evidence that it was completely burnt to ashes. My understanding is that a wooden stove is made to withstand fire. It should still be available for use after the fire. It may have been exposed to excessive heat but not totally destroyed. I will deduct 50% for depreciation from use and exposure to fire and the likelihood that a lesser purchase price may have been paid. The plaintiff will receive K500.00.

As for the claim for K1,500.00 for books claimed by the plaintiff, I will also reduce it by 50% for depreciation and the likelihood that a lesser purchase price may have been paid. The plaintiff will receive K750.00.

The plaintiff’s claim for K2,000.00 for tool box containing some 15 different kinds of tools is disputed by the defendants. Only 3 of them are major tools. They are the Dumpy level valued at K908.00, an electric saw valued at K232.00 and an electric plane valued at K300.00. The plaintiff says the tool box belonged to carpenter, James Lero. But James Lero says the Dumpy level, electric saw and the electric plane belonged to the plaintiff. Mr Lero says the plaintiff was given these tools by an expatriate man who had since left the country. I do not think the plaintiff should recover damages for the 3 major tools which he has disclaimed or made no claim for. As for the other tools owned by Mr Lero, he cannot recover damages in these proceedings in which he is not a party. I disallow the plaintiff’s claim for damages for the tool box.

I allow the whole of the plaintiff’s claim for minor miscellaneous household items lost in the fire, the total value of which is K3,288.90. These are not contested by the defendants. I award the same.

I disallow the plaintiff’s claim for K6,500.00 for legal fees and associated costs incurred by the plaintiff for instructing counsels, such as air fares and for accommodation and vehicle hire. These are party-party and lawyer - client costs which can be claimed later pursuant to order for costs in favour of the plaintiff which I will make shortly.

The plaintiff claims K12,500.00 for exemplary damages. For the same reasons I gave recently in my judgment in the case of James Koimo v The State, WS 134/93(H), Unpublished National Court Judgment N1322 dated 31 May 1995, I award exemplary damages in the nominal sum of K600.00. I award this damage against the State, the Fourth Defendant, only. This is because according to the report of Chief Superintendant JY Maru, which is annexed to Mr Yapao’s affidavit sworn on 20 January 1995 (Exhibit “B”), the destruction of the property was carried out by both regular policemen and reserve policemen left unattended and unsupervised by the First and Second Defendants. They themselves did not do anything deliberate or issue any illegal orders deliberately. The Third Defendant had no part in the operation and so he cannot be made to pay exemplary damages. The State will pay for the wanton actions of the other unidentified policemen.

Despite the plaintiff’s claim for K12,500.00, I have decided to award K600.00 because, as I said in James Koimo v The State, the amount of exemplary damages must be relative to the nature of the destruction of property. I think for a property valued at K18,750.00, an award of K12,500.00 is excessive.

Finally, I award interest at 8% from the date of commencement of proceedings to the date of judgment.

A summary of the total damages and interest I have awarded so far is as follows:

a.	General Damages
	House	K18,750.00
	Building materials	K1,250.00
	Six Cushion Chairs	K750.00
	Wooden stove	K500.00
	Books	K750.00
	Misc. Household items	K3,288.90
b.	Exemplary Damages	K600.00
c.	Interest for 391 days (20/5/94-29/6/95)	K2,210.34
	Total	K28,099.24

I award the plaintiff the total sum of K28,099.24 in damages inclusive of interest to be paid by the State, the Fourth Defendant. Costs of these proceedings is awarded to the plaintiff.

National Court of Papua New Guinea

Paraia v Yansuan, as Police Station Commander (Porgera) [1995] PGNC 25; N1343 (29 June 1995)