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

Unreported National Court Decisions

N1343

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

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

Mount Hagen

Injia J
23 March 1995
29 June 1995

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.

Cases Cited

Bonham-Carter v Hyden Park Hotel Ltd [1948] TLR 177

Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786

Biggin v Permanite [1951] 1 KB 314

James Koimo v The State Unreported Judgment N1322 dated 31 May 1995

Counsel

G Yapao for the Plaintiff

M Pokia with J Yamboli for the Defendants

26 June 1995

INJIA J: This is a trial on assessofnt of damages following default judgment. The action arises o a poli police raid on Paiam village, Pogera, Enga Province on 29 June 1993 following the fshooting of a policemen by warring clansmen. A combinombined police tioration of policemen from various parts of Enga resulted in widespread destruction of property, looting and the fatal shooting of one man. The plaintiff in tase is t is the President o Pogera Local Government Cont Council and a businessman in the Pogera District. There is no dispute his seis semi permanent houtuated at Paiam village was burnt down in the raid. T60; The plainti217;s clai claim is for damages for the loss of the house as contents as well as exemplary damages and interest. #160; The trialssessment ofnt of damages is contested by the defendants.&#The main dispute is as to t to the value of the L40 type house. I wial with the value of thof the house first.

L40 TYMI-PERMANENT HOUSE

The plaintiff’s case is that the house was valued at K40,000.00 inclusive of labour and tranation cost. The househouse was in 199n 1992. The plaintiff gaidence fire first. He said he hgal title over over the land on which the building was situated. The plaintiff in his oral evidence and in his affidavit makes a “conservative&; est of K40,000.00 of00 of which K6,700.00 was for the cost of t of labour. As to the cost of the materials, he left it to the carp who built the house to givo give evidence of.

The second witness was the carpenter, Mr James Lero from Southern Highlands Pro. His evidence consists of an affidavit on which he w he was cross-examined by the defendant’s counsel. He is a carpenteh 2 years ears experience. He htained a Vocational Scal School Certificate in 1988 specialising in carpentry. He haded with va constructtruction companies prior to building this house. At tme he b he built the hthe house, he was employed by Enga Bus. Hd his own tools except fopt for an electric saw, electric plane and dumpy level wvel which were supplied by the plaintiff.& The ing took 2 1/2 mo/2 months to complete. He engaged 5 other employees whom he supervised.&#1d. Hbour charge was K2.00/hou0/hour and the labourers rate was K1.00 per hour. The house he built wL40 ty40 type four bedroom house. However, there is ndence he used a house plan. Total cost ofhouse wuse wase was K40,000.00 which excludes security fees and cost of fencing the pry.&#1f, the K40,000.0000.00, K5,000.00 was for labour costs, K3,500.00 for transportation cost, ost, 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 by t by the plaintiff but wll burnt in the fire.fire. Most of ajor purchase of m of materials were made from established suppliers in Mt. Hagen with little materials purchased at Pogera. A truck auck and a tipper pper truck was hired to transport the materials. After the house was coed, ted, he was allocated one room of the house where he stayed and looked after the house. He till living in the houe houen it was burnt down.

The third witness called by the plaintiff was Moses Linonge.&#ge. He wan the District officefficerPogera with some 8 years experience in the Pogera District.rict. He een the house from the the road outside. His conserv estimate 50,0050,000.00 - K70,000.00. Hiimate wate was based on d on his view of the type of house, his own knowledge of thing his edge of the plainplaintiff as a businessman and Council President, as a person who was capa capable of building and owning such a house.

The fourth witness was Mr Herman Yongapen. He is a Dct Officer based ased at Pogera at that time. He had prior expee in carr carrying out investigations in police raid of villages in several districts in the Enga Province. He had exnce iessin value alue alue of properties destroyed including 2 L40 type semi-permanent house on e on previous occasions. His estimata L40 house in e in Enga is K50,000.00 - K60,000.00. His estimate ofplaintiff&#iffff’s house from seeing the house fro outside, from the main road, was K40,000.00. This decreased value wsed ased on the fthe fact that the plaintiff did not involvualified carpenter and that that the house was built on land owned by him.

The defence called Mr Mika Rek. He is the Senorks visor wior with the Dehe Department of Works in Mount Hagen. He qualified tradesman spen specialising in building construc Accg to Mr Rek, depending ding on the location of the building, a L40 type house woue would cost K35,000.00 for labour and mats andsportation costs osts but this value excludes the value of land. Generally speaking, ing, 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 superv

It is submitted for the plaintiff that on the evideevidence, 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 seo infer ther that 70% workmanship of K35,000.00 would reduce a L40 type house to the value of K24,500.00.

There are seversatisfactory aspects of the evidence as to the value of the house, especially in relation tion to the evidence produced by the plaintiff. First, the house is arn sern semi-permanent L40 type house. It was built in the spac2 of 2 1/2 months involving substantial expenditure of money. Taintiff is an educated aned and affluent member of the Pogera community and is no doubt capof financing a L40 type house. Yet ne receipt hapt has beas been produced in evidence to support his case. He says all the receipts kere kept in the house and were burnt in the fire which destroyed the house. Accepting this too, I do n do not think it iossible to locate carbon copy receipts at major supply stores for major purchases made in 1 in 1992/1993. All the major purchas materials for the house were made in established supply stly stores in Mount Hagen and it would not be so difficult to locate carbon receipts for some of the major purchases.

Secondly, the building involved substantitantial payments of money within a period of say not less than 2 1/2 months. There is no evidence wh ther the payments were made in cash or by cheque. It is normalind such vast vast amounts of money coming from a bank account operated by a person in the position of the plaintiff. plainhas noduced uced one fone financial banking documentation which supports his story.

>

Thirdly, the house was built by a quad carpenter who had previous work experience. Yet he has not prd any eviy evidence ofce of any specific house plan he used to build this house. All he says isas a L40 typ0 type 3 bedroom house.

Fourthly, the carpenter was engaged to constructhouse for which he and his his employees were paid at a commercial rate for their labour. The carpeis from Southern hern Highlands Province whereas the plaintiff is from Enga Province. Yet he waocated one room ioom in the house and was looking after thee for the plaintiff when the house was destroyed. Was; Was he really at a co a commercial rate for his labour or was he paid at8220;wantok” rate?&#1e? Was hely paid K5,000.00 by00 by the plaintiff?

Fifthly, which person or firm was engaged fte preparation? What What kind of mary or y 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. nus in on the plaintiff toff to prove, on the balance of probabilities, the damage. As Lord GodCJ said in Bonh Bonham-Carter v Hyden Park Hotel Ltd [1948]LR 177 at 178:

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

In the instant case, all thatplaintiff has done is described his house as a L40 type house whose value ranges between K4en K40,000.00 - K50,000.00. The evidof the plaintiff aiff and Mr Lero as to the cost of labour and other materials is also vague and inconsistent. For instance plaf say he w he was paid K5,000.00 for labour whereas the plaintiff says the cost of labf labour was K6,700.00. Even on the ned e of the ethe evidence produced by the plaintiff and the defendant, I am still left pont pondering as to what the real value of tuse is. The evidence produced bh poth parties merely give conservative estimates of t 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 mu substantiated with pith proper evidence by the plaintiff. The that the plaintiffRf’s house was situated in lage onment does not necessarily relieve the plaintiffntiff of his duty to provide proper evidenvidence especially when the house is said a modern semi-permanent L4nt 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 Vaugilliams LJ put it i 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 doer of the necessity of paying damages.”

In t>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 n v Pe 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 t in assessing the value of a house of this kind. But the value I into allocallocate to the house will, I believe, fairly compensate the plaintiff. In order to inte some marg marginal degree of certainty into my assessmentill do it this way. I will take the ge of K40, K40,0040,000.00 (relied on by the plaintiff) and K35,000.00 (relied on by the de) and reduce the average amge amount thereof by 50% for poor workmanship and for the possibility of reduced amount of payment for labour and materials. My calculatimes to K18,7508,750.00. I awardsame.

BUIb>BUILDING MATERIALS

The defendant disputes the building materials kept under the house which were burnt on the basis that it might amount to a double-claim.&#160ever, I am satisfied that 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 amoull be reduced by d by 50% for the likelihood of lesser purchase price been paid, in the absence of any receipts. The plaintiff receive K1,2 K1,250.00.

CUSHION CHAIRS

The plaintiff claims K1,500.00 for 6 pieces of cushion chairs. Thisot contested. Ag0; Again no rechave been been provided. I willct 50% for depreciateciation and likelihood that a lesser purchase price may have been paid. Thintiff will recover K750 K750.00.

TV SCREEN ECORD>

The plai plaintiff claims K1,500.00 for TV screen reen and recorder set. This is not ted by the plae plaintiff.& However there is no receipeceipt to confirm the purchase price. I will d 50% for depreciateciation and the likelihood that a l pric have been paid. The plaintiff will receive K750.K750.00.

WOODEN STOVE

The plaintiff claims K1,000.00 for aen stove which was burnt.

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 availaole for use after the fire. It ave been exposed cessivessive heat but not totally destroyed. I deduct 50% for depreciateciation from use ause and exposure to fire and the likelihoot a l purchase price mice may have been paid. The plaintifintiff will receive K500.00.

BOOKS

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 purchrice may have been paid.&#1d. Taintiff will receive K750 K750.00.

TOOL BOX

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 sero says the Dumpy level, electric saw and the electric plane belonged to the plaintiff. Mr Lero says the plai was was given these tools by an expatriate man who had sieft the country. I do not think the tiff shff should ould recover damages for the 3 major tools which he has disclaimed or madelaim for. As for the the other tools owned by Mr Lero, he cannot recover damages in these proceedings in which he is not a party. allow the plaintiff’8217;s claim for damages for the tool box.

MISCELLANEOUS HOUSEHOLD ITEMS

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

LEGb>LEGAL FEES

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 aies and for accommodation anon and vehicle hire. These are partyy and lawyelawyer - client costs which can be claimed later pursuant to order for costs in favour of the plaintiff which I will make shortly.

EXEMPLARY DAMAGES

The plaintiaims K12,500.00 for exemplaemplary damages. For the same reasonave rece 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 sum600.00. I award this this damaginsgainst the State, the Fourth Defendant, only. This is becausording to thto the report of Chief Superintendant JY Maru, which is annexed to Mr Yapao’s affidavit sworn on 20 January 1995 (Exhibit “B”), thtruction of the property was carried out by both regular poar 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. Thrd Defendant had no part part in the operation and so he cannot be made to pay exemplary damages. The State will pay he waactions of the othe other unidentified policemen.

Despite the plaintiff’s clai claim for K12,500.00, I have decided to aK600.00 because, as I said in James Koimo v The State, the amount of exemplary damages must must be relative to the nature of the destruction of property. I thor a property valued aued at K18,750.00, an award of K12,500.00 is excessive.

INTEREST

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

SUMMARY

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

Misc. Household items

Total

a.	General Damages
	House	K18,750.00
>	Building materials	K1,250.00
&#16iv>	Six Cushion Chairs	K750.00
	Wooden stove	K500.00
&#1div>	Books	K750.00
	K3,288.90
b.	Exemplary Damages	K600.00
c.	Interest for 391 days (20/5/94-29/6/95)	K2,210.34
	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 prongs is a is awarded to the plaintiff.

Lawyer for the Plaintiff: Yapao Lawyers

Lawyer for the Defendants: Solicitor General