N9516

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 291 OF 2009 OF 2021

BETWEEN:
RAPHAEL TOMBE TAMEAN on behalf of named Ors
Plaintiffs

AND:
SNOWY MOUNTAIN ENGINEERING CORPORATION PNG LTD
First Defendant

AND:
QUEENSLAND CONSULTING PARTNERS LTD
Second Defendant

AND:
DR WARI IAMO in his capacity as Secretary for Department of Environment and Conservation
Third Defendant

AND:
MR. BENNY ALLEN in his capacity as Minister for Environment and Conservation
Fourth Defendant

AND:
MR. JOEL LUMA in his capacity as Secretary for Department of works
Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Wabag: Kangwia J.
2022: 18th January 22nd March

CIVIL JURISDICTION – Assessment of damages after summary judgement - claim for damages arising out of gravel extraction – reliance on agreed facts – agreed facts not Court orders - claim for damage to eco system rejected – unverified claim of damage to crops and property - nominal damages awarded. 

Counsel:

L. Kandi & N. Wangatau, for the Plaintiffs
N. Balen, for the Third, Fourth, Fifth, & Sixth Defendants

1.      KANGWIA J: This is an assessment of damages after the Court entered summary judgement on liability in favour of the Plaintiffs on 9 March 2009. The Plaintiffs in a class action claimed a total K179. 04 million in damages for destruction to crops and property and the ecosystem. At the conclusion of trial, the matter was adjourned for three weeks for submissions to be prepared and filed by 10 February 2022. That was complied with, and submissions were heard. This is the decision on assessment.

2.     The undisputed facts are these. The named 445 Plaintiffs are the customary landowners of the lands along parts of the Lai River, the subject  of this proceeding. They are from the Kala, Puman, Neman and Kii Lakir clans. 

3. The First Defendant Company who was engaged to supply sand and gravel for the rehabilitation of the Wapenamanda to Wabag section of the Okuk highway, set up two quarries on land belonging to the Plaintiffs.  

4. The first was set up at a riverside named as Lakaiyok-Kamas. After some extraction of gravel, a customary land dispute erupted, and the company moved location further down to Sari, set up its machinery at the riverbank there and proceeded to extract gravel again. The extraction of gravel from both locations were from the same Lai River and purportedly without following proper environmental guidelines. 

5. The Plaintiffs claimed that because of the extraction of gravel from Lai river, the course and flow of the river changed causing irreparable damage to crop, property and habitation along both sides of the riverbank and sued for compensation over loss suffered.

6. The trial on assessment commenced with the Plaintiffs tendering into evidence by consent the affidavits of 445 deponents.  
7. Seven Plaintiffs were subjected to cross examination by notice. The evidence contained in the affidavits were similar in nature. They all related to the damage caused to their respective properties and the environment because of the extraction of gravel from the Lai River at the two locations. The only differences in the affidavits were the value of the property lost or damaged. 

8.   For ease of reference apart from the affidavits of the two expert witnesses, the affidavits of individual Plaintiffs were tendered through volumes by consent. They are as follows;

1.	Affidavit of Professor Chalapan Kaluwin		-Exhibit A
2.	Affidavit of Dr. John Duguman				-Exhibit B
3.	Affidavits of Kala Clan members in volume 1	-	“  C 
4.	    “		    “	   “          “		“	2	-	“  D
5.	     “		Puman Clan		    in volume 3	-	“  E
6.	     “		       “       “			   “	 4	-	“  F
7.	     “		Neman Clan	    	    in volume 5	-          “ G
8.	     “		Kii-Lakir Clan	     in volume 6	-	 “ H
9.	Affidavit of Raphael Tamean  filed 17/1/22		-	 “ I

9.      The Plaintiffs who were subjected to cross examination maintained that their individual and collective property were destroyed. When Ms Balen questioned them on the quotation for the property claimed as destroyed or lost, they all stated that the Principal Plaintiff Raphael prepared them.   

10.      The defence did not call any evidence and formally closed its case. 

11. Following that, both counsels led the Court to two issues that they had consented to with the endorsement of the Court be resolved. They are as follows (verbatim):

(a)	Did the Plaintiffs suffer any losses and damages?
(b)	 If they did, how much should they be compensated for? 

12.      The parties then resolved that the submissions would revolve around the two issues referred to and further agreed to refer to the disputed and undisputed facts, the affidavits tendered into evidence by consent and the evidence by the experts. By confining themselves to those two issues, they are precluded from referring to the other pleadings and relieves claimed in the statement of claim. 

A.	Did the Plaintiffs suffer any Losses and Damages? 

13.     On behalf of the Plaintiffs Mr. Kandi submitted that the Plaintiffs suffered damages through loss of land, loss of plantings and loss of structural improvements. This was evidenced by the unchallenged evidence contained in the affidavits of all the 430 Plaintiffs. It was further submitted that the Defendants admitted the loss in the Court endorsed findings in the Expert Scientific Report which stated; “this environment disaster could have been easily prevented if the proponent and implementors of the project followed the resilient Development framework methodologies. Due to their negligence, a disastrous situation has been created that cannot be reversed. The damages are irreparable and remains permanent for the affected communities along the Lai River. this among others that the damages are irreparable and remained permanent for the affected communities along the Lai River.”
 
14. It was submitted that by their admission the Defendants have acknowledged that the Plaintiffs have suffered irreparable losses and damages which are permanent and such damages continue to accrue for the affected communities along the Lai River system. 

15. On behalf of the Defendants Ms Balen submitted that no damages should be awarded. The Court was led to various considerations as giving rise to the submission.

16.     Ms Balen through an elaborate submission attacked the findings in the Expert Scientific Report and submitted that the report was biased and therefore not credible hence the Court should not place much emphasis on it.

17.     The findings in the report concluded that damages were extensive altering the natural landscape of the environment by disturbing the rivers hydrological dynamics damaging riverbed, ultimately affecting the livelihood of the Plaintiffs. The findings and conclusions were based on observations made during a two-day site visit in November 2019. 

18.     The report was compiled after a lapse of 22 years covering an area of 2 kilometres upstream from Lakiyok quarry and 50 meters downstream from Sari quarry. Gravel extraction occurred for two years only. The report did not cover the village communities along the Lai River to ascertain any consequential effect. 

19.     It was asserted that the findings attributed the source of the devastation solely on the extraction of gravel which had drastically changed the flow rate or turbidity of the river. 

20.     The report did not give its assessment of the volume of gravel extracted or the depth of the extraction enough to cause drastic change to the overall water morphology or the distance of the damage. Since there were other quarries for the road construction the amount of gravel extracted from the two quarries would have covered 5 kilometres. 

21.    By the reports stating that the Lai valley is a low-lying area and the Lai River meanders across the valley it would mean that the river catchment areas were subject to natural causes.

22.     By stating that the Lai River meanders between Tole and Kopen mountains and discharges daily loads of fine sediments and such sediments change during annual wet season would mean that the natural landscape makes the river subject to ongoing meander development leading to erosion or natural landslide destroying crops and buildings; that with high rainfall density in the province makes the area susceptible to flood paths. 

23.    Even though the report suggested that other variables contribute to changes in river morphology, it did not explain or identify which natural factors could cause it nor the overall morphology of the river before and after the extraction. The report did not depict the correct status and the overall implication on the river system and the surrounding environment. Therefore the report should be rejected.  

24.      This assessment stemmed out of a compensation claim over damage to property. It is a general principle of law that damages are awarded to place the aggrieved party to his original position as is possible and practicable under the given circumstances if the incident had not occurred.  The principles governing claims for compensation are similar in nature to damages, out of an award or amount paid or to be paid for loss suffered. 

25.     The principles outlined in the case of Michael Buna v Independent State of Papua New Guinea (2004) N2696 and Baine v Ulga (2019) N8076 are set out as follows; “The onus is on the Plaintiffs to prove the 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. 

26.     The burden of proving a fact is upon the party alleging it, not the party who denies it. (Yooken Paklin v The State (2001) N2212)

27.    Corroboration of a claim is usually required, and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335).

28.     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).

29.    The same principles apply after default judgment is entered or 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).

30.    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 & The State (1996) N1457). 

31.     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).

32.   Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214. 

33.    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)

34.    By those enunciations the overarching consideration is that the onus is on the Plaintiffs to prove the loss suffered. The principle on the onus of proof is as what Lord Goddard in case of Bonham Carter v Hyden Park Hotel (1948) 64 TLR 177 stated and applied in numerous cases in this country is this: 

“The Plaintiff must understand that if they bring actions for damages, it is for them to prove their damages. It is not enough to write down particulars …and say, this is what I have lost, I ask you to give me these damages. They have to prove it.”

35.     It therefore follows that the Defendants are not required to prove anything apart from negating the claim or making an offer.

36.   This case involves a judgement by default for assessment of damages. By that determination it is deemed that the first issue for determination is settled. Upon determination on liability, it naturally follows that the Plaintiffs had proved liability. The defendants cannot now say the Defendants should not be paid damages. The only issue to be determined is how should the Plaintiffs be compensated.

37.    Where default judgment is granted, for damages to be assessed, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214) 

38.     In the present case there was no pleading on the amounts claimed. Only the expert report was accepted as a fact. The only pleading seems to be the offer by the Defendants for K30 million which was aborted. 

39.     The first considerations that needs mention is that the Plaintiff has relied solely on agreed facts in the Expert Scientific Report and rates set by the Valuer General for crops as the foundation for the value of damages. It is assumed that this view was further enhanced by the endorsement of the Court of those facts. The defence submissions negate greatly the figures purportedly agreed to. 

40.    There is overwhelming authority which stand for the proposition that once a party agrees to a fact or facts in a proceeding that party cannot come out of it. That he or she is bound by it. (See Alex Awesa v PNG Power Limited (2016) N6359).

41.    At the outset an agreed fact is not a consent order or a Court Order to be obeyed.  It is a creature of procedure to cut down on excess for free flow of the Court process. Likewise, an endorsement of the Court is not a Court Order per see that is to be obeyed. It serves as an affirmation of the position of the parties in the process of litigation. By the defence negation it is safe to infer that the agreed fact was that there existed an expert scientific report and not the value suggested or assessed.  

42.     Even then it would be erroneous and illogical to award a substantial amount from claims just because it was an agreed fact. Claims must be proved by the Plaintiffs.  

43.    In the present case, what the Plaintiff is saying is, since the Expert Scientific Report has been agreed to as a fact, you must give me what has been claimed. That cannot happen. The amount claimed must be proved. The claim involved public funds and it would border on fraud to just enter judgement merely on an agreed fact. Therefore, assessment shall be made against the Defendant’s contentions. 

44.    The Plaintiffs through submissions relied on an Expert Scientific Report and value assessed for properties by the Valuer General to claim K179.04 as damages to property and environmental ecosystem. Specifically, the claim was for damages caused to land and property around and between the sites of extraction at Lakaiyok and Sari. The claim did not cover the whole length and breadth of the Lai River. 

45. I start with the claim for damage to the ecosystem. From the total claim K119, 821,537 was for loss of ecosystem relying on the Expert Scientific Report. 

46.    The report with due respect is in my view inherently suspicious and out of proportion to common sense. It is biased and unbalanced. It portrays a catastrophe so huge such that the Plaintiffs have been completely displaced. There is no evidence of it. The report did not identify the original status of the environment in the subject area and the environment after the extraction to verify the extent of damages alleged. Even then the report was prepared 22 years after the purported loss, and it was done from two days of site visit.
  
47.     The Lai River did not start at Lakaiyok and end at Sari. For comparative value, places where no gravel extraction was conducted should have been visited to assess and identify the effects of ecosystem damage to appreciate the Plaintiffs claim better. In the present case the report is confined to the area of gravel extraction only.  

48. From the expert analysis the affected ecosystem service was translated and calculated in figures at K7.46 million per annum for river small which covered Lai River. That figure was multiplied by 24 years being the period allegedly suffered to arrive at K179.04 million. 

49.    That calculation seems to suggest a static phenomenon. I beg to differ. Common sense, logic and experience accords strongly with the view that environment and the ecosystem generally is not a static phenomenon. 

50.    As years pass by environment revolves or changes naturally or by disturbance. On that basis the accumulated claims for 24 years from the day of filing the proceedings is for want of a better word illogical. The ecosystem cannot stop revolving after 24 years or a certain number of years. There is also the strong possibility that the ecosystem recovered within the 24 years. There is no evidence that the environment improved or remained static from the completion of gravel extraction and 24 years later. 

51. The shortfalls in the expert report identified by Ms Balen in submissions also attest to the inadequacy of the report as supporting a claim for damages to the ecosystem. I loathe entering judgement calculated for 24 years solely on a scientific report which is fraught with unanswered questions. That report was based on settled computations for eco system effect and not value for crops and property lost by the Plaintiffs. The expert report does not come to the aid of the Plaintiffs in their claim for damage to the ecosystem. The expert report is rejected and the claim for damage to eco system follows suit.

52. On the claim for loss of land and gravel the claim represents large areas with thousands of crops purportedly lost. In submissions the Plaintiffs assert that they collectively lost 114,225 square meters of land and gravel. i.e., Puman 44,081 square meters; Kala 39,973 square meters; Neman 20,183 square meters; 9,988 square meters for Kii Lakir. They arrived at these figures after assessing K500 for each square meter of land washed away and claimed a total of K57, 112,500. 

53. This claim is unverified. How the figures were arrived at is unclear as to whether it was out of the number of extractions or carloads of gravel extracted. The expert report does not say 114,225 square meters of land was washed away. The only explanation seems to be that it is a commercial value attached to gravel by native landowners throughout PNG. That assertion is not supported by corroborating evidence. The source of that calculation is unavailable rendering the claim unverified. This claim has not been proved to the required standard and is rejected. 

54. On the claim for damage to crops and property the items tabulated as lost or destroyed are as follows.
 
        Item				amount		value				
1.	Pandanus palms	  	-15, 327		K143,000
2.	Casurina trees		-20, 513		K242,668
3.	Banana (all species)	-12, 703		K76,218
4.	Pine trees			-5,778		K178,155
5.	Gum trees			-7,403		K228,259.16
6.	Pitpits				-138,190		K207,285
7.	Taro				-30,108		K105,879
8.	Breadfruit			-9,583		K172,494
9.	Greens			-26,191		K52,380
10.	Corn				-6,796		K4,961
11.	Sweet potato		-4,682		K26,687
12.	Fish & eels			-14,865		K222,975
13.	Thatched roof House	 -36			K144,000
14.	Semi- permanent house	15 houses		K135,000
15.	Semi-permanent snooker 	- 1			K23,000
16.	Fellowship house		-1			K23,000
17.	Catechist house		-1			K20,000
18.	Bridge			-1			K50,000
19.	Fencing			-part			K20,000
20.	Graveyard			-2			K30,000
Total - 	K179,040,000.

55. On the value of the crops itemised, putting money value on damage caused to property is difficult to determine precisely. It cannot be assessed with certainty. 

56. The Plaintiff’s say their property lost was from 114,225 Square meters of land and gravel that was washed away. From the claim it is apparent that crops and trees were on the 114,225 square meters of land were destroyed. They then claimed an average from rates set by the Valuer General’s Office which were classified according to small, medium and mature.

57. Two valuation reports on record have not been referred to in submissions of counsels. The expert report cited the two valuation reports as providing ample justification for the amount needed to be settled. In my view they are very relevant for purposes of assessment. One was done by Gabriel Du Karap a Registered Valuer. His assessment was K10. 23 million.  The other was by the then Valuer General Chris Kabauru of the Department of Lands. His assessment was K15 million. 

58. Those valuations were made 8 and 11 years respectively after the end of the extraction period purportedly at the request of the Plaintiffs. The reports involved an assessment of actual damage to crops and property and are useful in assessment. 
  
59. On the claim for the bridge and school fencing there is no evidence that the Plaintiffs incurred funding to restore them. There is no proof of the damages suffered by the loss of the bridges or the fence. Costs required to restore them were instigated by the Principal Plaintiff. These are public properties subject to scrutiny by the relevant authorities and not relevant for assessment here as loss suffered by the Plaintiffs. Similarly on the claim over purported loss of buildings they are also unverified. The value claimed are estimates at the behest of the Principal Plaintiff and are rejected as unverified.

60. The claims in total are unverified, vague and inherently suspicious. It runs into thousands of crops and properties as if a farm or plantation was damaged. Collectively the Plaintiffs purportedly lost more than 285,000 unverified crops. The area purportedly damaged covered both sides of the Lai Riverbed for 17 km. The expert report stated the Lai River as flowing between the Tole and Kopen mountains. Under these circumstances the propensity to manufacture and inflate the number of crops, other property and their value is high.

61. Apart from the valuation reports referred to there is no evidence that the value for the properties lost was corroborated by an independent valuer. There is evidence that the Principal Plaintiff did the calculations from interviews with the individual Plaintiffs. There is also no evidence that the Principal Plaintiff was a valuer. In the absence of any evidence to the contrary the value of the crops and other property set by the Principal Plaintiff are rejected as grossly inflated.  

62. The only conclusion is that the number of items purportedly destroyed, and the value placed there from, are deemed unreal as they were uncorroborated. As to how the figures were arrived at is no longer relevant when it is obvious that all the claims were on the face of the record unverified.
  
63. The conclusion is that the Plaintiffs have not proved the loss they suffered on the balance of probabilities. I reject the claims in the manner proffered by the Plaintiffs in assessment.  

64. However, it is undisputed that gravel was extracted at two locations. The Plaintiffs are from the area. Gravel was extracted at two locations proximate to each other from the river flowing on their land. Loss of gravel and sand is apparent. Whether the Plaintiffs received any payment for gravel extracted is unknown. 

65. Even though the expert report was deemed to have portrayed a bloated catastrophe, it cannot be ruled out completely that the surroundings of the extraction sites were capable of being affected. Under those circumstances a nominal award for loss suffered over crops and property should be allowed even though the amounts claimed were rejected as unverified. 

66. As to the amounts to be awarded there is no fixed criteria or formula to follow in awarding damages. 

67. I propose to depart from the formula applied in Francis Fuliva v Inspector Tony Wagambie Jnr (2013) N5221. In that case through an elaborate process damages were awarded to each individual claimant under three categories according to the damages claimed and the damages awarded with interest to arrive at a judgement sum. There is reason for deviating from that. It is an exhaustive time-consuming exercise and a logistical nightmare with the mathematics involved for execution and enforcement of awards.
 
68. Secondly this is a class action, where the Principal Plaintiff is suing in a representative capacity. Payments if awarded should be made according to the suit.  

69. Under the circumstances the appropriate method in my view should be the average of the two valuation reports not referred to in submissions. They are nearer to the time the extraction was completed.  It also includes the report from the government authority entrusted with valuations generally. 

70. To arrive at a sum figure, the average of the two valuations should be the assessed figure because they adequately covered the property the subject of the claim. They are factored this way. The two valuation assessments of K10.28 million and 15 million respectfully when totalled amounts to K25.28 million. Divide K25.28 million by two and the average stands at K12.64 million. From that average I reduce 2.64 million for the claims being unverified. 

71. I enter judgement for K10 million as general damages with costs to be taxed if not agreed. Interest is awarded on the principle at 2% per annum from the date of commencement of the proceedings. 
________________________________________________________________
Ace Lawyers: Lawyers for the Plaintiffs		
Solicitor General:  Lawyers for the Third, Fourth, Fifth & Sixth Defendants