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Pakui v Independent State of Papua New Guinea [2006] PGNC 219; N2977 (22 February 2006)

N2977

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 569 OF 1994

ETON PAKUI
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

MT HAGEN: CANNINGS J

9, 10 NOVEMBER 2004, 22 FEBRUARY 2006

JUDGMENT

Police – negligence – alleged police raid – representative action – multiple claimants – whether conduct of police officers negligent – whether police officers committed tort of negligence – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort.

Evidence – no evidence adduced by defendant – relevant considerations to take into account when determining whether to accept plaintiff's evidence – onus of proof – standard of proof – lack of corroboration.

Damages – special damages – damage and theft of property – exemplary damages – whether appropriate to award exemplary damages – plaintiff and 15 other claimants awarded various amounts of special damages, plus interest and costs.

The plaintiff is a resident of Tulipato village, Enga Province. He and a number of other villagers claimed that the police unlawfully raided the village and went on a rampage, burning down houses and other buildings and stealing property. He commenced proceedings in a representative action seeking damages for negligence. The defendant, the State, denied liability, saying that the police were not negligent and there was no raid as claimed. If, however, the court finds it liable, the State says that the claimants' losses are overstated. A trial was conducted addressing issues of both liability and quantum of damages.

Held:

(1) The plaintiff's version of events was difficult to believe in view of the nature of the allegation that the police had destroyed everything in the village and the lack of corroboration.

(2) However, the court was prepared to conclude on the balance of probabilities that there had been a police raid and some property was damaged – but not to the extent claimed.

(3) The plaintiff's claims as to special damages were discounted by 90% and individual awards made accordingly.

(4) The State is not liable to pay exemplary damages as individual police officers were not named as defendants.

(5) Sixteen claimants were awarded various amounts of special damages plus interest and costs.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Albert Baine v The State (1995) N1335
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Jonathan Mangope Paraia v The State (1995) N1343
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Peter Wanis v Fred Sikiot and The State (1995) N1350
Philip Kunnga v The State (2004) N2689
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

Abbreviations

The following abbreviations appear in the judgment:

@ – at
AJ – Acting Justice
CJ – Chief Justice
DCJ – Deputy Chief Justice
eg – for example
ie – that is; by which is meant
J – Justice
Ltd – Limited
N – National Court judgment
NGO – non-government organisation
p – page
PNG – Papua New Guinea
PNGBC – Papua New Guinea Banking Corporation
PNGLR – Papua New Guinea Law Reports
pp – pages
Pty – Proprietary
SC – Supreme Court judgment

Tables

The following tables appear in the judgment:

STATEMENT OF CLAIM

This was a representative action in which the plaintiff and other claimants sought damages for negligence.

Counsel

R Malepo for the plaintiff
B Ovia for the defendant

CANNINGS J:

INTRODUCTION

This is a case about an alleged police raid of Tulipato village, Laiagam district, Enga Province. The plaintiff is a resident of that village. He and a number of other villagers claim that the police unlawfully raided the village and went on a rampage, burning down trade stores and other buildings and destroying and stealing property. It is claimed that the police acted negligently.

The defendant, the State, denies liability. They say that the police were not negligent. There was no raid. If, however, the court finds the State liable, they say that the plaintiff's damages are overstated. The case is therefore about both liability and quantum of damages.

BACKGROUND

Alleged incident

On Wednesday 23 September 1992 the police allegedly raided Tulipato village. The plaintiff, Eton Pakui, says that it was an illegal raid involving destruction and theft of property. The defendant, the State, should be held vicariously liable for the negligent conduct of the police officers. The villagers should be awarded damages.

Statement of claim

On 3 August 1994 D L O'Connor, Lawyer of Mt Hagen, filed a writ of summons on behalf of the plaintiff and 16 other persons (referred to in this judgment as "claimants"). The State was and is the sole defendant.

The statement of claim attached to the writ alleged that police officers employed by the defendant wrongfully and unlawfully destroyed and misappropriated livestock and property belonging to the plaintiff and the others, that the police officers were acting in the course of their employment and that the defendant is vicariously liable for their unlawful actions.

The plaintiff himself sought special damages of K33,260.00 being for destruction of his trade store and cash, goods and livestock destroyed or taken plus exemplary damages. His was the biggest claim. The 16 others claimed various amounts ranging from K500.00 in the case of claimant Nos 12 and 13, Ipatas Menge and Kuku Was, to K27,200.00 in the case of claimant No 5, Ipata Yai.

A consent and authority form was apparently also filed with the writ, by which the 16 other claimants authorised the plaintiff to bring proceedings on their behalf.

Events since filing of writ

On 1 November 1994 the Solicitor-General filed a defence, denying liability on the ground that the defendant had no knowledge of the alleged incident.

In October 2002 Kunai Lawyers commenced acting for the plaintiff. The court file was at some time misplaced and had to be reconstructed. This appears to partly explain the delay in having the matter set down for trial.

On 17 May 2004 a bundle of affidavits by the claimants was filed, giving further details of each claim.

In November 2004 the trial was held at Mt Hagen.

PLAINTIFF'S EVIDENCE

Outline

Ms Kalepo, for the plaintiff, tendered 16 affidavits by consent and called the deponents of them to give oral evidence.

The affidavits

Each begins with a simple statement such as 'on 23 September 1992 policemen from Wabag police station came to our village and conducted a raid and burned and destroyed my property'. Then it itemises the property said to be burned, destroyed or lost. For example the plaintiff, Eton Pakui, deposes that the police burned and destroyed the following:

The store goods were put into 48 categories and a value attached to each category (eg 10 x Cheesepops @ 15.00 = K150.00).

The 15 other affidavits contained a similar level of detail. The value of property alleged by the affidavits to have been lost, destroyed or taken is summarised in table 1.

TABLE 1: SUMMARY OF AFFIDAVITS

One of the claimants did not swear an affidavit.

Oral evidence

The 16 claimants who swore affidavits gave oral evidence and were subject to cross-examination.

The first witness was the plaintiff Eton Pakui. He adopted his affidavit in examination-in-chief.

In cross-examination he stated that he is a teacher by profession. He was at Tulipato on the day of the alleged incident, 23 September 1992. He saw the police arrive. There was no tribal fight going on. He does not know who led the police or exactly how many police vehicles were used. More than ten it appeared. He had no time to take down any of the registration numbers. It was a massive police raid. The whole village was set on fire. Every house, store and other buildings were set on fire. The people were left with only the clothes that they were wearing. After the raid, it was an emergency as everyone was in need of shelter. Government authorities were made aware of the emergency. But no reports were prepared by the provincial government. Independent assessments were carried out on the extent of the damage. But those assessments are not available.

Eton Pakui said that the "house meri" he referred to in his affidavit was a dwelling house, not a person. He did not include details of personal items such as cooking utensils in his affidavit as he was focusing on the big items. He does not know the number of trade stores that were in Tulipato. He did not describe the materials used to build his trade store. But he knows what it was worth. He purchased the materials at Steamships Hardware, Mt Hagen. But he does not have the receipts of invoices as they were all burnt in the fire. It is very hard to get copies of receipts and invoices from Steamships Hardware. He put the exact value of the trade store, K8,300.00, in his affidavit. A valuer valued the trade store. But he does not have a copy of the valuer's report.

Eton Pakui stated that he started operating his trade store in 1991. He had a trading licence issued by the local-level government council. But the licence was burned in the fire. The council has not been operating since 1997 so he has been unable to get a copy of his licence. He used to purchase his trade store goods at Wabag and Mt Hagen. The last purchase he made was on 15 June 1992. He has no receipts or involves as they were all burned in the fire. It was very hard for him to get copies as he does not have a vehicle of his own. He used to turn over about K3,000.00 in a month. But he did not have a bank account for the store. He only operated the store for three months before it was destroyed by the police. He put the money into his personal account. But he does not have any bank statements. He paid provincial government tax when he got the licence. But he has no record of that.

In re-examination Eton Pakui stated that he put the money from the trade store into his own PNGBC bank account.

The second witness was Etemai Lyii. He adopted his affidavit in examination-in-chief.

In cross-examination he stated that he was at Tulipato on the day of the alleged incident, 23 September 1992. He saw the police arrive. He does not know who led the police or exactly how many police vehicles were used. More than ten it appeared. The police were holding shotguns. They raided the whole village. The whole village was set on fire. Every house, store and other buildings were set on fire. He cannot remember when he constructed his trade store or when he started operating it. He does not know how to speak Tok Pisin so he sent his boys to purchase store goods. There is no one in court who could verify what he was saying. He had a trading licence. But the licence was burned in the fire. He cannot recall who issued the licence. But he can recall the goods that were in the store when it was burned down. He has no receipts or invoices as they were all burned in the fire. He used to turn over about K300.00 or K400.00 in a month. He does not know how to read or write. He cannot recall signing the affidavit that has his name on it. Maybe someone else wrote his name on it. It was a long time ago.

There was no re-examination of Etemai Lyii.

The other 14 deponents gave evidence in a similar way to Eton Pakui and Etemai Lyii. They all adopted their affidavits and had nothing substantial to say in examination-in-chief. All said in cross-examination that they were present when the police arrived. The whole village was burned down by heavily armed police. No buildings were left standing. No records or valuations of property destroyed were available. Everything was burned in the fire. No reports of the incident were available. They were not subject to any significant re-examination. This process occupied more than a full day of the court's time.

The plaintiff's case was then closed.

DEFENDANT'S EVIDENCE

Mr Ovia, for the defendant, said he had hoped to be able to call some police witnesses to give evidence but they were on duty and unavailable. No affidavits had been prepared. So he called no evidence. The defendant's case was closed.

THE CAUSE OF ACTION

Though the statement of claim does not make it clear, I regard this as a common law action for negligence, brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297).

Common law

To establish liability a plaintiff needs to satisfy the basic elements of the tort of negligence:

• first that the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff and the other claimants;
  
• secondly that the tortfeasor breached that duty, ie by act or omission the tortfeasor's conduct was negligent;
  
• thirdly that the tortfeasor's negligent conduct caused injury to the claimants;
  
• fourthly that the claimants' injuries were not too remotely connected to the tortfeasor's conduct; and
  
• fifthly that the claimants did not contribute to their own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.
  

(See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)

Vicarious liability

Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons (such as police officers) over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.

THE MAIN ISSUES

This case does not involve many legal issues. It turns on its facts. That is, if the plaintiff succeeds in proving the facts as alleged there will be no dispute about liability. Clearly the cause of action will be made out. The only issue then will be assessment of damages. That is also a factual issue as the court will have to work out the extent of damage suffered by each claimant.

Though no evidence was presented by the defendant, the State, it flatly denies liability. Mr Ovia submits that there was no police raid at all. So the main issues are these:

• Was there a police raid at Tulipato on 23 September 1992? If the answer is no, the case will be dismissed. But if the answer is yes, the next question will be –
  
• What damages were incurred by the claimants?
  

Before setting out the submissions on these major issues I will mention a preliminary issue raised by Mr Ovia during his cross-examination of the claimants. Many of them cannot read or write. Mr Ovia put it to them that the consent and authority form that contained their signatures or marks did not mention the signatures and marks on their various affidavits. His point was that, in fact, many of the claimants had not given their consent for the commencement of these proceedings. It was a worthwhile line of inquiry but I do not think he succeeded in proving that the case was improperly instituted. I therefore reject the submission that some of the claimants be removed from the proceedings.

PLAINTIFF'S SUBMISSIONS

Ms Kalepo submitted that the oral evidence was clear and consistent with the affidavit evidence. There was a large police raid resulting in Tulipato village being destroyed. The court should appreciate the difficulties involved in obtaining corroborative evidence of what happened. A lot of documents that would have verified the extent of damage were burned in the fires set by the police. There were a number of trade stores burned down and the court should not underestimate the enterprise of the people of this village to establish a number of trade stores. It is normal for cash to be kept on the premises in a village environment. Ms Kalepo also submitted that exemplary damages should be awarded.

DEFENDANT'S SUBMISSIONS

Mr Ovia submitted that the oral evidence of all the claimants to the effect that every individual in Tulipato was left homeless cannot be believed. There is not a single report on the matter available from authorities such as the Laiagam district administration or the Enga Provincial Government. Some aspects of the claim are very suspicious, eg each claimant refers to the loss of a "house meri" or dwelling house but makes no claim for loss of personal belongings. Eight of the 16 claimants state that they lost a trade store. But not one of them brought any other evidence – besides his statement – that he, in fact, operated a trade store. If the court finds that there was a raid it should exercise considerable care before accepting the claims as to the amount of damage suffered by each claimant.

WAS THERE A POLICE RAID AT TULIPATO ON 23 SEPTEMBER 1992?

In Philip Kunnga v The State (2005) N2689 I set out the matters to take into account when deciding whether to accept the plaintiff's or the defendant's evidence. That was a police raid case set in the Western
Highlands. It had similarities to the present case. The plaintiff and a number of other claimants were saying that the police had raided their village and they had suffered significant property damage. The police denied it. The difference between that case and the present is that in Kunnga the police gave evidence. Two diametrically different versions of events were given. One group of witnesses was clearly not giving truthful evidence. To determine who it was, I considered the following matters:

• whether there were discrepancies between the signatures of the same witness on different court documents;
  
• whether there were inconsistencies between a witness's oral evidence and affidavit evidence;
  
• whether there were inconsistencies amongst the evidence of the same group of witnesses;
  
• whether a witness's demeanour in the witness box suggested that he or she was not telling the truth;
  
• whether the evidence given was vague;
  
• whether the evidence was or bordered on hearsay;
  
• whether there was any corroboration;
  
• whether the evidence, considered individually or collectively, seemed unrealistic or far-fetched.
  

In the present case there is no competing, police evidence. Nevertheless it is useful to consider the matters outlined in Kunnga. Thus:

• There are discrepancies between the signatures of the same witness on different court documents, as highlighted by Mr Ovia. However, it appears that many of the claimants are illiterate. They would not sign many documents. During the space of nine years (between when the consent and authority form was signed in 1992 and when they signed their affidavits in 2003) their signatures or marks may change significantly. I was more concerned with being satisfied that the person in the witness box was, in fact, the same person in whose names the case is brought. There was nothing to suggest that any of them were bogus witnesses. Each gave evidence and gave the impression they were genuinely interested in the claim. Ultimately the discrepancies that were highlighted did not unduly concern me.
  
• There were no major inconsistencies between any witness's oral evidence and affidavit evidence.
  
• There were no major inconsistencies in the evidence of the claimants.
  
• I was not overly impressed by the demeanour of the plaintiff's witnesses. Assessment of demeanour is very much an intuitive process. Many of the witnesses gave the impression that they had been coached to say 'yes it was a big raid and the police burned everything down'.
  
• The evidence was rather vague. There was little detail given about the number of police officers, the number of buildings burned down and the attempts made to get corroborative evidence.
  
• The plaintiff's case was based on direct evidence. There was little hearsay.
  
• I concluded that the plaintiff's evidence, considered as a whole, was a little unrealistic and even far-fetched. I could not accept that the police raid resulted in everything in the village being destroyed and that there was no independent evidence of such a calamity. However, on the other hand, to find as a fact that there was no raid at all – which is what the State submits – would require the court to conclude that the commencement of these proceedings was a conspiracy involving at least 16 villagers. I have not dismissed that as a possibility. But having considered all the evidence and observed 15 individuals in the witness box I regard it as improbable.
  

I am therefore satisfied that the plaintiff has proven on the balance of probabilities that there was a police operation at Tulipato on 23 September 1992, which was not a routine village search but a raid involving destruction and stealing of property.

WHAT DAMAGES WERE INCURRED BY THE CLAIMANTS?

I have examined the itemisation of the property of each claimant said to have been stolen, damaged or destroyed in each claimant's affidavit, in light of their oral evidence. Each claimant was subject to vigorous cross-examination. I have taken into account that formal valuations have not been provided and receipts and invoices are not available. Even though I have concluded that there was a raid, I remain bothered by the thing Mr Ovia emphasised: lack of corroboration. To sustain a case of this nature, the plaintiff should have some corroborative evidence. For example:

• receipts and invoices;
  
• photographic or video evidence, date stamped in some way;
  
• record of a complaint to and/or report by independent agency, eg Ombudsman Commission, Commissioner of Police or Police internal affairs; provincial government; member of Parliament, Minister for Police; NGO; local church.
  

I take into account the following principles for assessment of damages:

• The plaintiff has the onus of proving his loss 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. If an allegation forms an essential part of a person's case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia AJ.)
  
• 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, National Court, Woods J.)
  
• 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 and Others v The State (1995) N1369, National Court, Injia J.)
  
• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
  
• 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, National Court, Injia J.)
  
• 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 and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
  

In this case there is a complete lack of corroboration. When this is put alongside the precise nature of the allegation – that everything in the village was destroyed – the claimants' evidence about what they lost cannot be believed. I will therefore discount each claim substantially – by 90% – to reflect what I consider to be a more realistic assessment of what, in fact, was lost.

I will therefore award special damages by firstly calculating 10% of each claim and then doubling each amount to take into account the effects of inflation since 1992. The calculations are shown in table 2. Column 1 is the number of the claimant, column 2 the name, column 3 the claim, column 4 the 10% figure and column 5 the amount of special damages awarded.

TABLE 2: SPECIAL DAMAGES

Exemplary damages

Since the Supreme Court's decision in Abel Tomba v The State (1997) SC518, Amet CJ, Los J, Salika J, the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases, exemplary damages are not payable by the State; a plaintiff is expected to seek such redress from the individual police officers who breached the law. I consider that the facts of the present case fit into the second category outlined above. Exemplary damages are not appropriate in this case and I do not award them.

Total

Each claimant will receive a total award of damages equal to the amount of special damages awarded and nothing more, except interest.

Interest is not part of an award of damages and is assessed separately.

INTEREST

Relevant law

In the statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

Discretion

As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

Exercise of discretion

I exercise that discretion in the following way.

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.

2 As this is a claim against the State, the maximum rate that can be awarded is, by virtue of Section 1(2), 8%. In view of current economic conditions in the country, 8% is, I think, the proper rate of interest.

3 Interest should be payable on the whole of the sum of damages for which judgment is given.

4 The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day of the incident, 23 September 1992. The date of judgment is 22 February 2006. The appropriate period is therefore 13.42 years.

Calculation

I calculate the amount of interest by applying the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
  
• I is the rate of interest per annum;
  
• N is the appropriate period in numbers of years;
  
• A is the amount of interest.
  

For example, for Eton Pakui, interest is calculated as follows:

• K6,712.00 x 0.08 x 13.42 = K7,206.00
  

I will order that there be included in the sum for which judgment is given, interest of the amounts shown in table 3 in respect of each claimant.

TABLE 3: INTEREST

COSTS

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. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

The Court directs entry of judgment in the following terms:

1. damages payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Eton Pakui, and to each of the other claimants in the following lump sums as itemised in column 3 of the table below;
   
2. interest payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Eton Pakui, and to each of the other claimants in the following lump sums as itemised in column 4 of the table below;
   
3. being total judgement lump sums payable to the plaintiff, Eton Pakui and to each of the other claimants as itemised in column 5 of the table below;
   

4. in the event that that total judgment lump sums for the plaintiff, Eton Pakui and the other claimants is not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8% yearly from the date of entry of the judgment on so much of that total judgment lump sum as is from time to time unpaid;
   
5. costs to be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.
____________________________

Lawyers for the plaintiff : Kunai & Co Lawyers at trial
: Lomai & Lomai Attorneys at judgment
Lawyer for the defendant : Solicitor-General