Piaore v Barr [2009] PGNC 162; N3786 (16 November 2009)

N3786

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 213 OF 2000

BETWEEN:

MARTIN PIAORE
Plaintiff

AND:

IAN BARR
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Wabag: Yalo, AJ
2009: 14 and 15 April
16 November

Cases cited

Papua New Guinea Cases

MVIT v Pupune [1993] PNGLR 370 (Supreme Court)
MVIT v Tabanto [1995] PNGLR 214 (Supreme Court)
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Waima v MVIT [1992] PNGLR 254
PNGLR 370 and Motor Vehicle Insurance (PNG) Trust v John Etape [1995] PNGLR 214
Tabie Mathias Kolim and 28 Others v The State and Others [1998] PNGLR 247
Albert Baline v The State (1995) N1335
Jonathan Mangope Paraia v The State (1995) N1343
Peter Wanis v Fred Sikiot and The State (1995) N1350
Yange Lagan and Others v The State (1995) N1369
Obed Lalip & 20 Ors v Fred Sikiot & The State (1996) N1457
Yooken Paklin v Waugulo, Tokam and The State (2001) N2212
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Buna v Independent State of Papua New Guinea (2004) N2696
Pole v Independent State of Papua New Guinea (2008) N3500

Overseas Cases:

Livingstone v Rawyards Coal (1880) 5 App Case 25
British Transport Commission v Gourley [1956] Act 185
Bonham Carter v Hyden Park Hotel (1948) 64TLR 177

Counsels

Mr M. C. Thoke, for Plaintiff
Ms T. Tupo, for Defendants

1 YALO AJ: The plaintiff claimed damages against the defendants for destruction of food gardens and other properties. In 1996 and 1997 the first defendant was then the General Works Manager at Wabag. He was employed by the State through the Department of Works. He supervised the road works along the Wapenamanda /Wabag Road. The first defendant had used machineries such as bulldozers, excavators and dump trucks for the road works. The plaintiff asserted that the first defendant had in the course of conducting the road works dug and removed soil along the road and when it rained rainwater flooded food gardens and destroyed the crops, plants and trees and other improvements beyond the 20 meter reserve land. The plaintiff claimed damages for constant flooding of his gardens and other cultivated areas and for landslide that had damaged his gardens and trees and other crops. He claimed past and future economic loss in that he has been deprived from the use of his land.

2 Default judgment was granted on 9 May and entered on 14 May 2001. The defendants’ application filed on 3 August 2006 seeking to set aside the default judgment and dismiss the entire proceedings was dismissed on 27 October 2008 for want of prosecution.

ISSUES

3 The issues in these proceedings are as succinctly stated by the defendants. I restate them as follows:

1. Is the plaintiff entitled to each head of damages claimed?

2. What amount of damages should be awarded?

PLAINTIFFS SUBMISSIONS

4 The plaintiff argued that the second defendant through its agent, the first defendant constructed road between Western Highlands Province and Wabag which resulted in flood causing damage to his properties. The court granted and entered default judgment on 14 May 2001. The matter came before me for assessment of damages.

5 The plaintiff relied on his own evidence and the evidence of other witnesses. The plaintiff gave sworn evidence in the Enga Language. He relied on his affidavit sworn on 13 and filed on 14 October 2008. He said the affidavit was read to him and he understood the contents and signed it as being accurate. When his lawyer asked if he had anything more to say the plaintiff said that in 2008 he incurred further costs and he wrote to his lawyer. He filed further affidavit on 14 October 2008, court document No 29 marked as plaintiffs “A”. The defendants chose not to cross-examine the plaintiff.

6 The plaintiff called the next witness, Mr Bernard Kipakapu, who assessed the damages done to the plaintiffs properties. He filed an affidavit on 13 October 2008. His affidavit was tendered into evidence and was marked as Exhibit “B”. No further oral evidence was adduced from the witness. The defendants chose not to cross-examine the witness.

7 Counsel for the plaintiff submitted on the heads of claim as follows. In relation to damages for economic loss Mr Thoke submitted that this relates to the environmental damages suffered by the plaintiff which he said are set out in Bernard Kipakapu’s affidavit. Mr Kipakapu is from the District Office Wabag, Enga Province. He stated clearly that he physically attended or visited the sites and assessed actual loss suffered by the plaintiff. He was an expert and an independent officer who listed each item or property damaged. Annexure A2-A9 set out the actual environmental damages suffered by the plaintiff. The damages suffered are enumerated as follows:

(1) Apumanda K13,350.00

(2) Pomberande K11,837.00

(3) Lenki Mapoes K02,902.00

(4) Apumanda K02,290.00

(5) Kilidisa K06,402.00

(6) Subaemus K31,445.00

(7) Lepagona K31,978.00

(8) Pakorisa K48,029.00

(9) Timogopiakapaka K53,932.00

Total: K201,916.00

7 Mr Thoke submitted that this assessment was done based on rates provided by Department of Primary Industry (DPI). Mr Kipakapu was requested by DPI officer Kieth Yaene to attend the affected site and assess the damages.

9 The plaintiff Martin Piaroe’s affidavit deposed to the facts that he was the customary land owner of the areas affected by the flooding beyond 20 meters of reserve land. He said dumping of waste soil on the side of the road by the defendants or their officers had caused the soil erosion and flooding. He further named the areas affected by the flood and claimed the total amount of K201,916.00 assessed by Mr Kipakapu in his report.

10 It was submitted for the plaintiff that his two affidavits are consistent and set out clearly each item destroyed and this court should accept the assessment done by Mr. B. Kipakapu. Furthermore, since the defendants have provided no evidence to counter the claim the plaintiff has proven his losses. The amount claimed is reasonable, as it is assessed by an officer of the State.

11 The plaintiff claimed K5,546.00 in special damages. He has provided evidence under paragraph 15 of his affidavit wherein he has annexed (Annexure B) copies of some receipts. The plaintiff argued that given the fact that this matter has taken so long and the State had filed various applications prior to this trial and taking into account pocket expenses a reasonable amount of K5,546.00 should be awarded.

12 Finally the plaintiff asked for an award of 8% interest from the date of issue of writ to date of settlement pursuant to Judicial Proceeding (Interest on Debts and Damages) Act. He asked for full costs of the entire proceedings as the State had filed three applications without taking steps to prosecute the case and the matter was dragged on for last 8 years.

DEFENDANTS’ SUBMISSIONS

13 Counsel relied on their written submissions. Their lengthy submissions attack the plaintiffs claim on two main grounds, namely lack of evidence to substantiate the claim and lack of proper pleadings.

14 The defendants argued that the evidence and pleadings are very confusing and contradictory in many respects as demonstrated in their reasons. There is lack of corroborative material evidence and the court must deal with Mr. Bernard Kipakapu’s evidence with caution, if not skepticism. It is difficult to make clear and precise findings of fact for the following reasons:

a) The plaintiff failed to quantify the number of trees and crops destroyed;

b) What type of trees and plants were lost;

c) What production of the land was eroded or damages and;

d) No map or sketches or photographs of the land were adduced in the evidence.

e) The court was not invited to inspect the site

f) There is no independent evidence, e.g. from a family member or member of community, deposing to losses suffered as alleged to by the plaintiff.

g) The plaintiff failed to demonstrate how the value of K201,916.00 was reached.

15 The defendants submitted that the evidence provided by Mr Bernard Kipakapu have the following discrepancies:

a) Annexure “A” of Bernard Kipakapu’s affidavit is a letter dated 27 August 1997. Under paragraph 3 line 2 of that letter, he deposed to have conducted a physical count made in five separate locations. He goes on further to say in paragraph 3 that the sixth location was done by one Mr. Peter Yange. Annexure “A2” to “A6” are the 5 areas in which the deponent deposed to have conducted his counts. And according to his assessment he values the loss at K36,531.50. In annexure “A7” he deposed in paragraph 3 of the cover letter in annexure “A” to have been conducted by one Peter Yange. This is hearsay evidence and cannot be relied upon. As for Annexure “A8” to “A10”there is no indication as to who conducted the assessment and how the total value of K167,384.50 was reached.

b) Mr. Bernard Kipakapu is not a registered Valuer to have reached the total of K201,916.00 .

c) No working documents, calculation sketch maps, photograph 4 of his affidavit.

d) There is no evidence of the endorsed report as alluded to in paragraph 4 of his affidavit.

16 In addition the amount claimed by the plaintiff Mr Bernard Kipakapu in their respective affidavit evidence in support of those claims are self serving which have been exaggerated with highly inflated figures. Mr Bernard Kipakapu’s figures must be discounted substantially for lack of credible independent evidence. There is no corroborative evidence such as by family members or village councilors or Government officers to support these claims.

17 Paragraphs 5 and 8 of the Statement of Claim have not been properly pleaded in that, no particulars have been pleaded. Paragraph 8 is where the plaintiff pleaded that particulars were to be advised. Based on these reasons the defendants submitted that the plaintiff has failed to prove on the balance of probabilities the damages and loss he has suffered.

18 The plaintiff alleged that as a result of the negligence of the defendants during the construction of the Wabag to Wapenamanda road, he suffered losses. The plaintiffs pleading in relation to damages and loss are generally set out in paragraphs 5 and 8 of the Statement of Claim. These paragraphs are reproduced here for convenient reference:

“5. Each time the Defendants or their agents cause to remove and dig soil by use of excavators, bulldozers, dump trucks and other similar machineries, at Lenki Village for continuous road maintenance or construction, the left over soils caused constant flooding to gardens and uncultivated areas of the plaintiff and members of his family and caused extensive damages to crops, plants, trees and other improvements.

“8. In consequence thereof, the Plaintiffs has suffered and continue to suffer loss and damages in that they were deprived of from use of their agricultural land, gardens or other assets or in kind full particulars of which will provided before or at trial.”

19 There is lack of concrete evidence available to this court to demonstrate the value of the land that has been lost or destroyed; and the value of the improvements lost or destroyed. The court should consider that in Annexure “A” of the plaintiffs affidavit he deposed that crop payment was already made hence this should be refused. Damages should therefore only be awarded for flooding to uncultivated areas and for past and future economic loss.

20 Interest if awarded should be at 8% calculated from the date of issue of commencement of proceedings which is 2 March 2000 to the date of the judgment. The defendants submitted that costs is a discretionary matter for the court.

RULING

21 Both counsels made extensive submissions on the relevant law which I have found useful in my reasoning. What is the purpose of awarding damages? In Livingstone v Rawyards Coal (1880) 5 App Case 25 at 39 Lord Black Burn said:

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

22 In British Transport Commission v Gourley [1955] UKHL 4; [1956] AC 185 it was stated that:

“the broad principle which should govern the assessment of damages in case such as this is that the tribunal should award the injured party such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. The principle is sometimes referred to as the principle of restitution in integrum. This principle affords little guidance in the assessment of damages for the pain both mental and physical and in fixing such damages; we can do no more than endeavor to arrive at a fair estimate taking into account all the relevant considerations”.

23 It is also trite law that the plaintiff is not automatically entitled to damages where default judgment has been entered against the defendant. This principle of law was stated in Jonathan Mangope Paraia v The State (1995) N1343, Peter Wanis v Fred Sikiot and The State (1995) N1350, and Obed Lalip & 20 Ors v Fred Sikiot & The State (1996) N1457. In Mangope the court applied Lord Goddard CJ’s statement in Bonham Carter v Hyden Park Hotel (1948) 64TLR 177 at page 178:

“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, so to speak, throw them at the end of the Court, saying. This is what I have lost, I ask you to give me these damages,” they have to prove it”.

24 This principle of law has been restated in Yooken Paklin v Waugulo, Tokam and The State (2001) N2212 and Buna v Independent State of Papua New Guinea [2004] N2696. In addition the plaintiff must corroborate with independent witness his loss or losses. It is not enough to simply assert his losses: Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331 and Albert Baline v The State (1995) N1335. The requirement to prove the loss applies even where the defendant fails to present evidence disputing losses the plaintiff alleges to have suffered: Peter Wanis v Fred Sikiot and The State (1995) N1350. It has been stated that the same principle of law applies in instances where default judgment is entered and the trial is on assessment of damages and even when the trial is conducted ex parte. It was held in Yange Lagan and Others v The State (1995) N1369 that the plaintiff who has obtained default judgment is not entitled to an award for damages for losses he has suffered unless he discharges the onus on him to prove by credible evidence the losses he has suffered.

25 Ms Tupou submitted for the defendants that the plaintiff is only entitled to damages which are properly pleaded in the statement of claim. Counsel relied on Pole v Independent State of Papua New Guinea (2008) N3500 where Gavara-Nanu J, stated that:

“liability by reason of a default judgment entered against the defendant only relates to matters which were properly pleaded by the plaintiffs in their statement of claim”.

26 This principle of law was emphasized by the Supreme Court in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694:

“But with the exceptions of fresh matters being introduced without objections at trial, parties are restricted to the case and relief detailed in their pleadings. In any other case, to alter pleadings, a party must seek amendment and only if such amendment is granted can there be relief outside that which has been pleaded.

...The default judgment only resolved the liability against PNGBC for the matters pleaded and for the relief prayed for in the Statement of Claim. It follows therefore that the assessment of damages could only be made for the relief actually pleaded...”

27 Order 8 Rule 29 of the National Court Rules provides that a party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him. For the plaintiff in this instance what he may be entitled to be awarded is restricted to those he has pleaded.

28 In Obed Lalip for himself and on behalf of Marae Kulap and Francis Minabo v Fred Sikiot and The State (1996) N1457, the court found the evidence very confusing and contradictory. It did not award any damages. The court held:

“Just because the plaintiff has obtained default judgment does not mean that he is entitled as of right to receive damages. He must prove the damages suffered by credible evidence”.

29 In Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370 and Motor Vehicle Insurance (PNG) Trust v John Etape [1995] PNGLR 214, it was held that the plaintiff had the obligation to properly plead his claims, including providing particulars of those claims. The failure to do so left the claims uncertain and undefined thus leaving the defence not knowing what to defend. That was bad pleading thus providing the basis for the plaintiffs claims to be dismissed.

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 and The State (1996) N1457.

31 However it can be also said that the fact that damages cannot be assessed with certainty does not relieve the wrong-doer 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 (Supreme Court), Waima v MVIT [1992] PNGLR 254, MVIT v Pupune [1993] PNGLR 370, (Supreme Court) and Tabie Mathias Kolim and 28 Others v The State and Others [1998] PNGLR 247.

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 The law laid down in Peter Wanis v The State (1995) N1350 at page 2 is that independent evidence must be called to give support to the plaintiffs claims: “It is not enough to just assert an estimate, it must be supported”.

35 The law relevant and applicable in this case has been summarized by Cannings J in Buna. His Honour stated:

“The key principles can be summarised as follows:

• The plaintiff has the onus of proving his 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. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

• 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, National Court, Woods J.)

• The same principles apply after default judgment is entered and the trial is on assessment of damages – even 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, National Court, Injia J.)

• 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 and The State (1996) N1457, National Court, Injia J.)

• 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, National Court, Injia J.)

• 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, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

• 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, National Court, Jalina J)”.

36 I apply these principles of law in this case as follows. First, I examine the pleadings. Thereafter I will examine the plaintiffs evidence. So far as it relates to the pleadings in relation to the heads of claims the plaintiff claimed damages, interests and costs and no more. The plaintiff has not pleaded special damages in his statement of claim but provides copies of receipts of expenses relating to these proceedings. But they are of no use because claim for special damages which relate to money spent by the plaintiff has not been pleaded in the statement of claim. I agree with Ms Tupou that the plaintiff is only entitled to damages which are properly pleaded in the statement of claim. In applying the principle of law established in Pole v Independent State of Papua New Guinea (2008) N3500 and Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694 both of which I referred to earlier I refuse the plaintiffs prayer for award in relation to special damages.

37 The next head of claim is general damages. Has the plaintiff proven this claim or has he offered sufficient and credible evidence to support his claim and therefore entitle him to have this court award the claim? The plaintiff relied on his affidavit filed on 14 October 2008 (Exhibit A) and an affidavit of Mr Bernard Kipakapu filed on 13 October 2008. I discuss the latter affidavit first. Mr Kipakapu deposed to the fact that he is a Rural Development Officer and he posses Certificate and Diploma in Tropical Agriculture. In 1997 he was instructed by his superior and he did conduct assessment of damages done to the plaintiffs land. Mr Kipakapu annexed to his affidavit a copy of his investigation and assessment reports. According to his assessment report the total damage done in Apumanda was K13,550.50; in Pambaranda K11,387.00; in Lenki Mapoes K2,902.00; in Apumares K2,290.50; in Kilindis K6,402.00; in Sambaes K31,445.00; in Lepagon K31,978.00; in Pakaris K48,029.50 and in Timogogpiak Piaka K53,932.00. According to Mr Kipakapu’s assessment the total loss is K201,916.00.

38 In Obed Lalip the court held that default judgment does not entitle a plaintiff as of right to receive damages he must prove by credible evidence. Similarly in Peter Wanis the National Court stated that a plaintiff must bring independent evidence to support his claim of loss. He cannot just assert an estimate. Mr Kipakapu’s evidence does not have photographs of the garden crops, garden land, trees, etc alleged to have been destroyed. The two letters dated 18 February and 13 March 1997 annexed as annexure A to the plaintiffs affidavit refer to photographs of the damage done to the land, gardens, crops and trees. These photographs were not supplied to the court to substantiate the claim. No sketches of the area are provided. The only sketch that counsel for the plaintiff provided to assist the court during trial is not proper evidence.

39 I defer from Ms Tupo’s submissions that the trees and crops destroyed were not described and quantified. There are sufficient details of the items destroyed. However I do agree with counsel that the plaintiffs evidence is not supported and corroborated by any other person from the area, say a village leader or Councilor or local clergyman etc. I asked Mr Thoke if the plaintiff owns all the land and the gardens, crops and tress referred to in Mr Kipakapu’s affidavit and allegedly destroyed. Counsel referred me to paragraph 10 of Mr Piaore’s affidavit and stated that the plaintiff may not have owned all the land and the properties destroyed. Following that revelation counsel failed to assist the court and show only those land and properties that the plaintiff owned and which were destroyed. So it is apparent that the plaintiffs claim that he owned all of the land and the properties allegedly destroyed by the defendants’ conduct is highly suspicious.

40 I note that whilst Mr Kipakapu holds a Diploma in Tropical Agriculture I am not sure whether that qualifies him to play the role of a registered or official Valuer appointed under Sections 4 and 5 of the Valuation Act 1967. Valuers are qualified professionals whose nature of their job entails placing monetary value on tress, crops and the environment in general.

41 In applying the principles of law established in the numerous cases I have referred to above it leads me to one conclusion. That is, the plaintiff has failed to prove his losses on the balance of probabilities. He has not provided credible and cogent evidence of his losses and no one has come forward to corroborate his evidence and he has further failed to call credible independent evidence. I therefore conclude that the plaintiff if not entitled to damages.

42 It has been held in Jonathan Mangope Paraia v The State (1995) N1343, that 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. This means that even where damages cannot be assessed with certainty but where precise evidence is available the court must do its best to reach a conclusion to award damages to do justice in a particular case. In applying this statement to this case, I say that damages cannot be assessed with certainty for the reasons I have given. Is there any precise evidence? I answer, may be. But however precise the evidence may be Mr Kipakapu is not a qualified Valuer. He does not state in his affidavit that his qualification and his job entails valuing trees, garden crops and garden land. I am unable to rely on the evidence that he has provided.

43 This is a court of justice. It cannot just ignore an aggrieved party’s complaint of loss or losses or injury or injuries. It is obliged to offer redress to the party who claims to suffer the loss or injury. But in order for the court to discharge that obligation in favour of the injured party that same party has a reciprocal obligation to assist the court with credible evidence for it to determine a conclusion that is just. Justice cannot be discharged on the basis of a Judge’s whim or his or her guess as to the nature and extent of a plaintiffs loss or injury. Whilst the plaintiff may have suffered loss I do not feel that the total amount claimed for the losses are genuine. With respect the entire claim is suspicious. There is nothing to substantiate the losses. Whilst the court may feel sorry for the plaintiff he has not assisted this court to apply the statement of law in Jonathan Mangope Paraia in his favour.

44 The plaintiff has not proven his losses and claim beyond the balance of probabilities. I refuse to make any awards to him. I dismiss the entire proceedings. Cost is a matter of discretion. I order costs be in the cause.

________________________________

M.C. Thoke Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants