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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 425 OF 2001
MICHAEL BUNA
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
MT HAGEN: CANNINGS J
4, 5 OCTOBER, 11 NOVEMBER 2004
JUDGMENT
NEGLIGENCE – assessment of damages – river excavation work carried out by governmental body – course of river changed – flooding of plaintiff’s land – liability for negligence already established by entry of default judgment – heads of damage – principles applicable to assessment of damages following entry of default judgment – plaintiff must establish loss on the balance of probabilities – need for independent corroboration of claims – need for evidence to be adduced in respect of each head of damage pleaded in statement of claim – Court must be alert to false claims – award of damages based on best evidence available – interest – discretion of Court – how discretion is to be exercised – judgment.
Cases cited:
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Waima v MVIT [1992] PNGLR 254
MVIT v Pupune [1993] PNGLR 370
MVIT v Tabanto [1995] PNGLR 214
Albert Baine v The State (1995) N1335
Jonathan Mangope Paraia v The State (1995) N1343
Peter Wanis v Fred Sikiot and The State (1995) N1350
Yange Langan and Others v The State (1995) N1369
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Yooken Paklin v The State (2001) N2212
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Michael Buna v The Manager, Department of Works, Western Highlands Province and The State, WS No 425 of 2001, National Court, 28 June 2004, unreported
Counsel:
Mr P Kunai for the plaintiff
Mr J Kolkia for the defendant
CANNINGS J:
INTRODUCTION
This is a case about assessment of damages. The plaintiff, Michael Buna, has already obtained a default judgment on the issue of liability, with damages to be assessed.
BACKGROUND
The plaintiff is a farmer. His land is near Kindeng village, in the Anglimp District of Western Highlands Province. It is 25 kilometres east of Mt Hagen, about half a kilometre from the Tuman River Bridge, which crosses the Okuk Highway. In 1997 the provincial works department did some work on the bridge. They also excavated parts of the river. As a result, the course of the river was changed. It began to flow near or through the plaintiff’s land, which became eroded. On 5 and 10 January 2000 the Tuman River flooded his land. Topsoil was lost. Garden trees and crops were washed away or destroyed. The plaintiff says he twice tried to warn the engineers who were working on the project that this sort of thing would happen. But they ignored him.
On 24 February 2000 the plaintiff gave notice of his claim to the State.
On 4 April 2001 Kunai and Co Lawyers, of Mt Hagen, filed a writ of summons on behalf of the plaintiff. The statement of claim attached to the writ claimed that a number of improvements the plaintiff had made to his land were lost or destroyed because of the actions of the provincial works department. These included coffee trees; pandanus (marita) trees; casuarinas (yar) trees; banana trees; and food gardens.
The plaintiff claimed damages for:
The statement of claim did not expressly state the plaintiff’s cause of action. But it is a common law action founded on negligence. Two defendants were named:
The defendants did not give notice of intention to defend the claim. Nor did they file a defence. The plaintiff then applied for default judgment. He was successful. On 19 April 2002 Sakora J entered default judgment against the first and second defendants and set the matter for assessment of damages.
On 11 April 2003 Paul Paraka Lawyers commenced acting for the defendants. On 4 September 2003 they filed a notice of motion, seeking orders that the default judgment be set aside and the proceedings dismissed. On 18 June 2004 the motion was argued before Manuhu AJ. Two main arguments were raised by the defendants. First, notice of the claim had not been given, as required by Section 5 of the Claims By and Against the State Act 1996. Secondly, the first defendant was an incompetent party.
On 28 June 2004 his Honour dismissed the first argument and upheld the second. The default judgment of 19 April 2002 remained intact. But only against the State. The Manager of the Department of Works was removed as a party. His Honour noted that the State was vicariously liable for the tortious acts of its servants and agents within the Department of Works who carried out the excavation work (Michael Buna v The Manager, Department of Works, Western Highlands Province and The State, OS No 425 of 2001, National Court, 28 June 2004, unreported.)
PLAINTIFF’S EVIDENCE
The plaintiff called three witnesses. They each swore an affidavit, which was tendered into evidence. They each also gave oral evidence and were subject to cross-examination.
Michael Buna is the plaintiff. He swore an affidavit on 14 April 2003. He deposed that he had protested to the workmen about diverting the course of the Tuman River. But they ignored him. He later reported the matter to the provincial works department. They paid him K279.00 compensation. They told him to come back later to collect another K279.00 as the balance of the amount due. But he never went back. He then approached a rural development officer at Anglimp District Station, John Konga, to assess the damage to his property. He also approached a registered valuer with the Department of Lands, Gabriel Michael. They each prepared a report on the matter.
Michael Buna confirmed the contents of his affidavit in his examination in chief.
In cross-examination he stated that he had twice reported the matter to the district office. John Konga went to his village and made his assessment. Gabriel Michael went later. Mr Kolkia, for the defendant, asked Mr Buna how he knew the exact number of trees and crops that had been lost. The witness responded that he had lost a very big area of land. He was no more precise than that.
In re-examination, Mr Buna indicated that he had a good idea of the number of items that he had lost, as it was his land and he had planted the trees and crops with his own hands.
John Konga is a rural development officer with the Department of Western Highlands. He swore two affidavits for this case, dated 14 April 2003 and 27 August 2004. He deposed that he had been engaged by the plaintiff to prepare reports on his flooded land, in 2000 and 2001. He inspected the property and prepared his reports. On 10 January 2000 he estimated that the total land area that was washed away was 6,380 square metres [= 0.638 hectares]. On 31 January 2000 he valued various improvements on the land (coffee trees, yar trees, bananas and pandanus) at K4,384.00. He based this figure on what he referred to as the Valuer-General’s 1995 price schedule. In his 2001 report, Mr Konga indicated that there had been a more recent washaway between March and May 2001. The area washed away on this occasion was approximately 2,700 square metres [= 0.27 hectares]. He estimated the value of trees and crops washed away as K7,650.00. Further erosion will occur, he stated, if the course of the river is not changed.
John Konga confirmed the contents of his affidavit in his examination in chief.
In cross-examination he stated that he had estimated the area of land involved and estimated the number of trees that had been lost. It was put to him that he had never inspected the site and never taken any photos of the land that was allegedly washed away. He replied that he had visited the land twice. But the photos that he had taken and the sketch map he prepared were no longer with him. He gave them to the plaintiff. He agreed that he was not a qualified valuer.
In re-examination, John Konga stated that he had done similar reports before.
Gabriel Michael is a registered valuer, employed by the Department of Lands and Physical Planning in Mt Hagen. He swore an affidavit for this case, dated 20 July 2004. He deposed that the plaintiff had approached his Department in 2002. He inspected the property and prepared a report. He described the land as "Tuman Land Milinch Hagen". It is customary land. It is fairly level but gradually rises to the hills. Improvements to the land are a bush material residence set on the hilltop overlooking the river site and the remains of a few coffee and other trees destroyed during the time of flood and erosion. The total value of land and planted improvements is assessed at K67,700.00.
Gabriel Michael confirmed the contents of his affidavit in his examination in chief. He stated that he is the co-ordinating valuer looking after the Highlands region. He has been a valuer for 11 years.
In cross-examination he stated that he had prepared the valuation based on the market situation in the Mt Hagen area in 2002. A valuer considers similar sales in the same area. He considered the prices of other land sold around the Tuman Bridge. He worked out a reasonable estimate. Different valuers can arrive at different figures. The figure he arrived at was the total value of land and improvements. It comprised the sum of K36,300.00 for the improvements and K31,300.00 for the land. When assessing the value of the trees and crops destroyed he could not physically count them, as they had been washed away. He made an estimate, based on the area of land. The total area of the land that was washed away or destroyed was approximately 4.9 hectares.
DEFENDANT’S EVIDENCE
The defendant, the State, offered no evidence.
PLAINTIFF’S SUBMISSIONS
Mr Kunai, for the plaintiff, acknowledged that the plaintiff bore the onus of proving his losses. The fact that a default judgment was entered did not relieve the plaintiff of his evidentiary burden. Nevertheless the fact that the defendant had not offered any evidence to rebut the plaintiff’s evidence was significant.
The plaintiff is claiming damages for two categories of losses: loss of land and loss of improvements. Damages for loss of land should be quantified as K31,300.00. Damages for loss of improvements should be K36,300.00. The gross total is K67,700.00. This should be reduced by 10% for errors and omissions and by a further K279.00, the amount already paid by the defendant to the plaintiff.
The net total is therefore K60,651.00 plus interest of 8%, from the date of filing of the writ to the date of judgment.
DEFENDANT’S SUBMISSIONS
Mr Kolkia submitted that the plaintiff should be awarded nothing, as he had not discharged the burden of substantiating any loss. Alternatively he should be awarded K6,000.00.
Mr Kolkia argued that the three witnesses gave vague, unreliable and inconsistent evidence. The plaintiff, Mr Buna, could not quantify the number of trees and crops destroyed or washed away. His evidence was too vague. A plaintiff must adduce admissible evidence in support of his claim. He cannot rely on the evidence of others. There was no evidence at all adduced in support of the claim for future economic loss pleaded in the statement of claim. The rural development officer, Mr Konga, estimated that the total land area involved was 9,080 square metres [= 0.908 hectares]. He estimated the value of improvements as K12,034.00. He could not produce the sketch map he had prepared or the photographs that he had taken of the site. The valuer, Mr Michael, stated that the total land area involved was 4.9 hectares. He estimated the value of improvements as K36,300.00 and the value of the land washed away as K31,400.00. The inconsistencies in the evidence were so glaring that no award of damages should be made. However, if the Court is minded to make an award of damages a nominal sum of K6,000.00 should be awarded.
RELEVANT LAW
Each counsel made helpful submissions on the relevant law to apply. The key principles can be summarised as follows:
FINDINGS OF FACT
All the above principles have been taken into account in making findings of fact in this case.
I accept the thrust of Mr Kolkia’s submission on the quality of the evidence. It is rather vague and inconsistent regarding the area of land involved; what proportion of it has been eroded or damaged and what proportion completely washed away; and how many trees and crops were lost. No maps or sketches or photographs of the land were adduced in evidence. The Court was not invited to inspect the site. It is therefore difficult to make clear and precise findings of fact.
It is not so difficult, however, that the Court must conclude that none of the plaintiff’s land was eroded or washed away and no trees or crops were lost. That is clearly not the case. I am alert to the possibility that this is a false claim. However, I do not consider that it is. The evidence points to this being a genuine claim. It is clear that some land belonging to the plaintiff was washed away or eroded and that a substantial number of trees and crops were lost; and this was attributable to the course of the Tuman River being diverted by the excavation works undertaken by the provincial works department.
I have considered Mr Kolkia’s submission that the plaintiff himself has not given sufficient evidence of his loss. Mr Kolkia referred to the judgment of Injia J in Yange Langan and Others v The State (1995) N1369 in support of that proposition. However, that was a case where the principal plaintiff had made claims on behalf of many other claimants who did not provide any evidence in support of their individual claims. His Honour held that each claimant must adduce evidence in support of his or her claim. They cannot rely on other people to give evidence on their behalf. It was a Police raid case.
With respect, Mr Kolkia has taken the dicta of Injia J out of context. I reject the submission that the inadequacies of the plaintiff’s evidence mean that there is a fatal gap in the evidence in this case, that cannot be filled by evidence of other witnesses. The gaps have, to some extent, been filled by the evidence of Mr Konga and Mr Michael.
The critical question of fact in this case is: What area of land was washed away or eroded? I consider that Gabriel Michael’s evidence is the most reliable. He is a registered valuer, employed by the Department of Lands and Physical Planning. There is a reasonable presumption of independence pertaining to his evidence. No evidence was adduced to defeat that presumption. He estimated that 4.9 hectares of land was eroded or destroyed.
The problem with his evidence, however, is that no working documents, calculation sheets, sketch maps, photographs or other supporting documents were adduced. This significantly reduces the value of his evidence; especially when his figures are at variance with those of Mr Konga, the rural development officer. This lack of corroborative material means that the Court must deal with Mr Michael’s evidence with caution, if not scepticism. It does not mean that the evidence is worthless and needs to be rejected.
However, I consider that Mr Michael’s figures must be discounted substantially, to bring them into line with the other evidence before the Court. I discount them by 50%.
I accordingly find, as a fact, on the balance of probabilities, that the area of the plaintiff’s land that was washed away or destroyed was approximately 2.45 hectares. I also find, as a fact, that the number of trees and crops that were lost or destroyed was half the figure used by Mr Michael in his calculations.
ISSUES OF LAW
The issues of law that now need to be determined are:
Heads of damages claimed
As indicated earlier, there are two:
Evidence
There is evidence of erosion of the top soil and loss of fixtures and improvements (ie the trees and crops). But as to economic loss, I accept Mr Kolkia’s submission that there is a dearth of evidence.
Damages can therefore only be awarded for the first head of damage claimed.
Amount of damages
The Court has already found, as a fact, that approximately 2.45 hectares of land was eroded or washed away due to the negligence of the defendant. The plaintiff is entitled to damages to compensate him for that loss.
The best evidence available to the Court is that:
The plaintiff will therefore obtain damages of K33,800.00.
Interest
In his 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.
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.
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 former date was identified by Manuhu AJ, for the purposes of this case, as 5 January 2000. (Michael Buna v The Manager, Department of Works, Western Highlands Province and The State, National Court, WS 425 of 2001, 28 June 2004, unreported, at page 3.) I agree with that.
COSTS
The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party. 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:
Judgment accordingly.
______________________________________________________
Lawyers for the plaintiff : Kunai Lawyers
Lawyers for the defendant : Paul Paraka Lawyers
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