N11485

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 291 OF 2022

BETWEEN:
BILL SIPAYAU on behalf of himself and 30 others
Plaintiffs

AND:
AHCHEONG LIEW in his capacity as Loung Logging Camp Manager
First Defendant

AND:
SUPER GREEN LIMITED
Second Defendant

WAIGANI:   DINGAKE J
8, 18 JULY, 12 SEPTEMBER 2025

PRACTICE & PROCEDURE – Assessment of damages after entry of judgement on liability by Consent – Principles governing assessment of damages – No issue on liability is to be taken – Where there is already a judgement in an action for damages for breach of contract the only issue at assessment of damages is the damages that flow from the breach – Plaintiff has burden to establish its damages on the balance of probabilities

Cases cited
Reid v Murray Hallam and Allcad Pty Ltd [1995] PGNC 26
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 
Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd [2012] PGNC 37; N4682
Raeboy v Ever Grow Corporation Ltd [2018] SBHC 16; HCSI-CC 246 of 2016 
Aloni Nivah v Letipiko Balesi [2014] SBHC 33; HCSI-CC 241 of 2006

Counsel
Mr. Kusunan, Pokiton for the plaintiff
No Appearance, for the defendant

JUDGMENT

1.	DINGAKE J: INTRODUCTION: This is a claim by the Plaintiffs for damages inflicted upon them by the Second Defendant’s agents. The claim arises from damage caused to the Busuwei reef system, which is part of the Plaintiffs’ customary land and seas. The Plaintiffs seek damages for negligence, pain and suffering, economic loss, exemplary damages, and associated costs.

2.	The Defendants, though duly served, have not entered an appearance nor filed a Notice of Intention to Defend. The liability against the Defendants was established by the Court Order dated 07 February 2025 (Document 11). 

3.	The Plaintiffs claim the following relief: 

a)	General Damages for negligence
b)	Damages for pain and suffering
c)	Damages for past economic loss at K38,000.00 per Plaintiff (31 Plaintiffs).
d)	Damages for future economic loss at K1.14 million per Plaintiff
e)	Exemplary damages.
f)	Interest on damages under Judicial Proceedings (Interests on Debts and Damages) Act 2015.
g)	Costs.
h)	Such further orders the Honourable Court deems fit.

4.	``The Plaintiffs rely on the following affidavits for assessment of damages:

(a)	Affidavit of Manuai Matawai, filed 18 February 2025 (Document 12);
(b)	Additional affidavit of Sam Floyd, filed 20 February 2025 (Document 13);
(c)	Affidavit of Bill Sipayau, filed 21 February 2025 (Document 14);
(d)	Affidavit of Bill Sipayau, filed 4 March 2025 (Document 15);
(e)	Affidavit of Frank Bill, filed 4 March 2025 (Document 16);
(f)	Affidavit of Bernadette Bill, filed 4 March 2025 (Document 17);
(g)	Affidavit of Lorain Bill, filed 4 March 2025 (Document 18);
(h)	Affidavit of Leah Bill, filed 4 March 2025 (Document 19);
(i)	Affidavit of Belinda Bill, filed 4 March 2025 (Document 20);
(j)	Affidavit of John Bill filed 4 March 2025 (Document 21).

5.	From the above evidence the following facts are discernible:

a)	The Plaintiffs’ customary land and seas, neighbour a logging camp owned by the Second Defendant under the timber rights purchase block 1, compartment 4, set up 14.

b)	On the 9th of June 2019, a logging ship anchored out in the deep waters awaiting timbers to be transported to the sea. However, that night, the cargo ship came outside the waters of set up 14 and anchored in the traditional sea or waters without seeking the consent of the Plaintiffs.

c)	On or about 10pm, the Second Defendant’s pontoon cut loose from the cargo ship, onboard the pontoon were round logs harvested during the day, and crashed into the Busuwei reef. 

d)	The extent to the environmental damage include;

i.	1,700 square meters or 60.78% of Busuwei reef were damaged
ii.	Loss of marine life
iii.	It will take 30 years for Busuwei reef to fully recover.

6.	Much of the detail motivating the claim can be discerned from the affidavit of Manuai Matawai, Fisheries Research Officer (Document 12). In his affidavit, Mr. Matawai says the following: 

a)	He attests to his expertise of over 35 years on local fish species and market prices in Manus.

b)	Mr. Matawai’s job comprised of research work namely baseline fisheries survey and working with communities to establish locally managed marine areas.

c)	According to his research, Mr. Matawai conducted an assessment on the population and livelihood sources of Busuwei Hamlet, Bundrahei Village. 

d)	In his findings, there are 31 residents whom he interviewed. Based on his interviews and calculations, he states that:

i.	The average family member in Bill’s family earns K50.00 per day for 30days each month for 12 months and earns an annual income of K126,000.00 per family.

ii.	The annual food security value from fish consumption is K55,800.00. This is calculated from the 31 members at a rate of K5.00 per head for 30days each month for 12 months.

iii.	The total annual livelihood source calculated (income + food security) is K181,000.00. 

iv.	Given that reef recovery may take up to 30 years, the estimated total loss is K5,454,000.00.

7.	The balance of the other affidavits simply indicate that the deponents rely solely on Busuwei reef for their sustenance, especially before the damage that was occasioned to the reef. They also say that the next reef is situated at Sowei Island, and the inhabitants do not allow others to go fishing there. According to the deponents the other reefs the Plaintiffs usually use is located at another village, Salien village, which requires them to pay 5-gallon one way; and roughly costs them K260.00 one way. One of the deponents, Mr. Sam Floyd says that there is another reef in his village but to go there will cost K110.00 one way.

8.	It is clear from the evidence tendered by the Plaintiffs that the Busuwei reef is a very important source of their livelihoods, and it sustains their families. The Plaintiffs rely on the reef to have fish and sell at the local markets and Lorengau markets. It is also clear from the evidence that about 31 persons are directly dependant on the reef for food and income and the daily income from sales is estimated at K104.10 per person or K38,000.00 per person annually.

ISSUE(S)

9.	The only issue before me is assessment of damages, namely how much damages should be awarded to the Plaintiffs.

PRINCIPLES OF LAW

10.	There is a plethora of authorities in this jurisdiction that establish the following, after entry of judgment on liability:

a)	The judgement resolves all questions of liability in respect of the matter pleaded in the statement of claim.

b)	Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.

c)	The Plaintiff carries the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

d)	A Plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.
(See also: Reid v Murray Hallam and Allcad Pty Ltd [1995] PGNC 26,
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February 2002); Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd [2012] PGNC 37; N4682 (18 May 2012))

APPLICATION OF LAW TO THE FACTS

11.	Before applying the law to the facts of this case, I consider it appropriate to refer to two persuasive cases I read from Solomon Islands. These are the cases of Raeboy v Ever Grow Corporation Ltd [2018] SBHC 16; HCSI-CC 246 of 2016 (31 January 2018) and Nivah v Balesi [2014] SBHC 33; HCSI-CC 241 of 2006 (9 May 2014).

12.	The above cases may be summarised as follows: 

a)	Aloni Nivah and Letipiko Balesi [2014] SB HC 33; High Court Solomon Islands

A claim was filed on 20th June 2006 seeking various reliefs. A subsequent amended claim was filed on 25th August 2008. The reliefs sought were related to the following customary lands located on Savele peninsula, New Georgia Western Province: Tabakale, Korovuna, Gakelea, Boku, Kainivere and Padakainigatu. The orders sought include permanent injunction in respect of specific lands, damages for trees, conversion of trees and environmental degradation and interest and costs.

Judgment was entered in favour of the claimant on the 30th of October 2013.

Amongst other things, the court assessed the damages for destruction of terrestrial and marine environment. These include damages to mangroves and coral reef systems. 

b)	Raeboy v Ever Grow Corporation Ltd [2018] SBHC 16

This was a claim for tortious acts on collusion by tugboat and barge on reefs of the claimant.

The Facts

On or about 07th October 2015 around 2:00am, the Defendant’s Tugboat M.V. Target 9 which at the relevant time was towing a Barge loaded with its logging machineries and equipment including round logs, fuel and oil wrecked on the reef off the Mijanga Point. The wreckage resulted in the barge continuously hitting the reef and sunk within minutes with everything on board.

Apart from the round logs, fuel, oil and equipment on board the Barge, heavy logging machineries include five (5) excavators, one (1) dump truck, one (1) log truck and one (1) land cruiser.

The wreckage of the tugboat and the latter’s subsequent sinking with its load have caused substantial damages to the reef and its immediate marine environment while floating objects including the logs as well as fuel and oil spillage extend the same to the surrounding marine environment. Most important is the likely long-term destruction and effects the wreckage through, rusting fuel an oil spillage including other associated pollutions would have not only on the surrounding marine environment, ecosystems, flora and fauna but also on the very livelihood and health of the Claimants and the members of their tribe living in the neighbouring villages.

The court held in favour of the Plaintiffs and ordered damages in the amount of $600,000.00 in interest to be paid by the Defendants to the Plaintiffs.

13.	Having regard to the evidence in this case as summarised above, and the law, I am satisfied that the Defendants damaged the reef as claimed. 

14.	In this case, I hold that the First Defendant was negligent when carrying out his duties as the logging camp manager resulting in destruction of the Busuwei reef by its pontoon.

15.	The First Defendant was further negligent in that:

a)	Failed to seek permission from the Plaintiffs to use their traditional waters to anchor its logging ships and pontoon.
b)	Failed to offload all the logs onto the logging ship before attaching the pontoon to the logging ship.
c)	Failed to pull the pontoon back to the jetty based at the logging camp at Rauke.

16.	Due to the negligent conduct of the First Defendant, Busuwei reef received extensive environmental damage and physical damage.

17.	The evidence establishes the following damages to the environment:

a)	1,700 square meters or 60.78% of Busuwei reef were damaged.

b)	Loss of Marine life.

c)	It has been estimated to take 30 years for Busuwei reef to fully recover.

18.	I am further satisfied that the Plaintiffs derived their livelihood from the Busuwei reef for food and income. In the absence of any evidence to contradict that of the Plaintiffs I am satisfied that the Plaintiffs have made out a claim against the Defendants.

19.	It is also clear on the evidence that the damage to the reef is not only ecological but also has cultural and economic ramifications that negatively impacts the livelihoods of the Plaintiffs and accordingly, I intend to award compensation for loss of amenity and community disruption.

20.	I have already found on the evidence, that the daily income per person can credibly be calculated at K104.10 which translates to K3,166.60 per month and an annual income of K38,000.00.

21.	On the evidence I find that the Plaintiffs claim on past economic loss has been proven and should be awarded.

22.	With respect to future economic loss according to the affidavit of Mr. Manuai Matawai, it would take about 30 years for the reef to recover and taking that into account, the Plaintiffs claim of K5,454,000.00 is credible and established. I will in due course make an award to that effect.

23.	With respect to exemplary damages, there is no sufficient evidence to justify this award. 

24.	With respect to out-of-pocket expenses, the Plaintiffs claim the following out of pocket expenses were incurred leading up to the filing of this summons:

a)	Travel expenses (Busuwei village to Lorengau town) – K2,520.00.
b)	Photocopying – K100.00.
c)	Living expenses in Lorengau (28/06/2019 – 24/03/2022) – K3,026.52.
Totalling to K5,646.52. 

25.	Special damages must be strictly proved. No such proof was tendered in this case. I make no award for special damages. I have also not found sufficient basis to award damages for pain and suffering.

26.	All the circumstances of this case, the Court orders as follows: 

1)	Damages for past Economic Loss at K38,000.00 per Plaintiff.

2)	Damages for Future Economic Loss at K1.14 million per Plaintiff.

3)	Interest of 8% on damages under Judicial Proceedings (Interest on Debts and Damages) Act 2015, from the date of this judgment.

4)	Costs are awarded to the Plaintiffs on a party-to-party scale and such costs to be agreed or taxed. 
________________________________________________________________
Lawyer for the plaintiffs:	 Public Solicitor