Kuri v Damie [2005] PGDC 45; DC233 (31 March 2005)

DC233

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 143 OF 2004

BETWEEN

Manda Kuri
Complainant

V

Joseph Damie
First Defendant

Thomas Nima
Second Defendant

Blackly Marky
Third Defendant

Lipin Simon
Fourth Defendant

Tony Waine
Fifth Defendant

Port Moresby: Bidar, Pm
2005: 14th & 31st March

Damages –
Claim for damages to personal properties
Raid by defendants and others on complainant’s property - Liability -
Whether on evidence defendants liable -
Liability made out.

Damages -
assessment of property damaged or lost -
Requirement to prove damages -
Mere assertions not sufficient -
Damages reduced -
Judgement for complainant.

Cases Cited
Livingstone -v- Rawyards Coal (1880) 5 App. Cases 25 at 39.
Peter Wanis -v- Fred Sikiot and the State N1350.

31st March 2005

Judgement

BIDAR, PM: This is a claim for damages as a result of raid / trespass by defendants at Erima settlement, particularly at complainant’s premises on the 6th December 2003. During the raid / trespass defendants and whole lot of others from Gumine, Simbu Province, damaged complainant’s motor vehicle, Nissan Navara, Snooker table, power extension cords, walls, fence and light fixtures.

Complainant also claims damages for trespass.

Default judgement was entered on 14th July 2004, but on application it was set aside on the 23rd September 2004. Matter was then adjourned for trial on 27th October 2004.

For various reasons trial did not take place but the proceedings were adjourned from time to time and was finally set down for trial on 2nd December 2004.

On 2nd December 2004 trial as scheduled did not eventuate. Again for various reasons the matter did proceed until it came before me on 14th March 2005.

Both parties informed Court that they have filed and exchanged their affidavits and that there was nothing further to file or submit. Parties have given no notices to cross-examine deponents of each others affidavits. What the parties were submitting was that Court should consider the evidence before it and to make a decision on the complaint. The trial in its true cause did not take place as the parties relied on each others affidavits to have the matter resolved.

Evidence

Evidence for complainant appears to be this. Jane Wakai in her statement deposed that on the 5th December 2003 she went to visit her elder sister Cathy Siune with her 4 year old son Emmanuel and her brother inlaw Kamulis Pora at 4 Mile. After visit they got on a bus around 2:00pm and were dropped off at Waigani around Somare Foundation Building. From there they started walking back to Erima Settlement at the back of National Parliament. On the way between New Zealand High Commission and Waigani round about, three unidentified women approached them and argued with Jane Wakai, for some unknown reason. Some minutes later a group of Gumine people men and women numbering 15 - 21 came upon Jane and others and attacked them with bush knives, sticks, and iron rods. She received injuries to her head and her brother inlaw sustained injuries as well which required medical attention.

On Saturday 6th December 2003 about 8:00am, Jane’s husband left for Murray Barracks to report the incident. Whilst his wife Jane and others remained at home. Between 9:00 and 10:00am on the same day, a group of men and women numbering 30 or so from Gumine, Simbu Province invaded the complainant’s premises and damaged a double cabin Nissan Navara which was in running condition, snooker table, power extension cords and galvanized walls and light frames.

This group of men and women were led by defendants, Joseph Damie who was armed with shield and bush knife, Thomas Nima armed with a factory made shot gun, Blacky Marky armed with bow and arrows, Lipin Simon armed with factory made pistol and Tony Waine who had an axe and he smashed windscreens of the vehicle. They poured kerosene around the house, tuckor shop and club and attempted to set fire but they were stopped by John Kay of Goroka, and Willie Lipin of Wabag, a policeman from McGregor Barracks and duty policeman from Gordons Police Station.

Some two days later, mediation in the community was attempted with community policing at Gordons. At the mediation it was resolved that K400.00 should be paid as compensation for assault on Jane but nothing was said about damages done to the vehicle and other properties. The walls of the buildings were axed, timber fencing smashed. As I alluded to mediation was attempted, but no settlement was reached.

On the other hand, defendants deposed to a joint affidavit which is unusual. In their joint affidavit, they deny liability and say that the whole episode arose among complainant’s wives. Complainant has two wives and they both have children and at the time they lived separately.

The wives met each other around Waigani round about on 5th December 2003, and fought each other. The second wife Warai Peter received injuries to her head and at home she reported to her mother Cathy. Cathy ran to Jane and cut her on her head and injured her. She (Jane) sustained similar sort of injury that Warai Peter received on her head.

Taking advantage of the situation youths from Wabag, Tari and Simbu rushed to the scene, as they were under the influence of liquor pushed and punched Kamulis.

On the 6th December 2003, two youths Lipin Simon and another went to Erima to do shopping. As soon as they reached complainant’s premises and towards Robert Suckling’s residence, two men one was named Gavman and another unidentified person attacked these youths with knives, and Lipin Simon sustained deep wound to one of his knees. Their attackers left, injured Lipin Simon to bleed there and they decamped. Eventually, the injured Lipin Simon was escorted to the residence. From there mothers, children, men from Tari, Simbu and Wabag rushed to the scene to investigate. The defendants also joined in the melee. As they did so, a gun shot was fired towards the crowd and two men received gun pellets one on his head and the elderly man on his chest. The youth with pellets in his head was rushed to Port Moresby General Hospital for surgery. They deny causing damage to the vehicle, walls of the shop as well as the fence. They say, other youths, retaliated to avenge the injured youth and caused damages to complainant’s properties. Subsequently, police, investigations led to confirmation of factory made shotgun from the complainant’s premises.

Mediation was attempted sometime later with other side making offers but no settlement was reached. I have considered whole of the evidence and I am satisfied on the balance of probabilities that defendants and others were involved in the damage of properties which belonged to the complainant therefore I find defendants liable.

General Principles on Damages

The general principle is that when a Court is considering whether or not damages should be awarded was stated by Lord Blackburn in Livingstone -v- Rawyards Coal (1880) 5 App. Case 25 at 39.

"When an injury is to be compensated by damages in settling the sum of money to be given for ................. damages for should as nearly as possible get at that sum of money which shall put the party who has been injured, or who has suffered in the same position as would, have been if he had not sustained the wrong for which he is now getting compensation..................

In McGregor on Damages (Sweet) & Maxwell, 13th ed. 1972 London), the learned author puts the same principle in another way at p.935:

"The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages.

This follows from the general rule that the burden of proving a fact is upon him who alleges it not on him who denies it so that when a given allegation forms an essential part in a persons case, the proof of such allegations falls on him. Even if the defendant fails to deny the allegations of damage or suffers default, the plaintiff must still prove his loss.

The principle requiring plaintiff to prove his claim was applied in Peter Wanis -v- Fred Sikiot and the State N1350 August 1995, Woods J. said at p.1.

"While the State (defendant) has failed to present any evidence disputing the general claim it is still necessary for the plaintiff to produce appropriate evidence before the Court to support the quantum of the claim."

Having stated the principle, I proceed now to assess damages that I should award to the complainant.

Damages

From the statement of claim, the complainant claims K8,767.15 for damages caused to his motor vehicle, a Nissan Navara double cabin. Damages caused to electrical items, building materials as well as other costs.

With respect to the motor vehicle he obtained a quotation from Boroko Motors on 22nd January 2004, which quoted K8,767.15. No other quotations were obtained. For building materials and electrical items he also obtained quotations from Steamships Hardware and Brian Bell and Co. respectively. Complainant despite producing these quotations, he had not produced in evidence any receipts evidencing payment of repairs or purchase of replacement building materials and electrical items. In the absence of receipts evidencing payments, I am of the view that these are mere assertions by the complainant and that no repairs to the motor vehicle or replacement of building materials and electrical items were paid for.

Furthermore, receipts for repairs carried out on motor vehicles usually accompany documents showing actual work carried out on the vehicle. Again no such documents are produced in evidence by the complainant.

On the basis of the quotations which complainant produced in evidence it is clear the motor vehicle sustained damages, the building materials which were roofing iron and electrical items, were as a result of defendants and others attack. In all the circumstances I assess a reasonable sum of K6,000.00 for damages to the motor vehicle which I award. I assess sum of K300.00 for damages to building materials and electrical items, which I award. I allow interest at 8% per annum on that amount from date of summons to judgement, which calculates to K504.00.

The total award I make to the complainant is K6,804.00.

I order defendants to pay the complainant K6,804.00. If the defendants do not pay the complainant in full within 30 days, interest shall run at 8% per annum on the whole amount until paid.

Complainant’s costs shall be paid by defendants which are to be taxed if not agreed.

In Person: Complainant
In Persons: Defendant