Pinda v Inguba [2009] PGNC 263; N4659 (28 May 2009)

N4659

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1757 OF 2003

BETWEEN:

JACK PINDA
Plaintiff

AND:

SAM INGUBA, THE POLICE
COMMISSIONER
First Defendant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn J.
2008: 8th December,
2009: 28th May

Assessment of Damages – Wrongs (Miscellaneous Provisions) Act – whether sufficiently pleaded in statement of claim

Facts:

The Plaintiff (Jack Pinda) operated 2 stores in Wabag. He alleges that these stores were looted and damaged by members of the police. He commenced this proceeding seeking amongst others, damages. Default judgment was entered against the Police Commissioner and the State for failing to file a defence. This hearing is for an assessment of damages.

Held:

1. The pleadings of the Plaintiff do not properly plead how the Police Commissioner is supposedly vicariously liable or how the State is supposedly liable under the Wrongs (Miscellaneous Provisions) Act (Wrongs Act). The plaintiff has not proved that the defendants should pay damages under the Wrongs Act for the torts committed by the policeman;
   
2. The application for an award of damages in favour of the plaintiff is refused. The costs of and incidental to the assessment of damages shall be paid by the plaintiff to the second defendant.
   

Cases Cited:

Papua New Guinea cases

The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR 5
Obed Lalip v. Fred Sikiot (1996) N1457
Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002) N2182
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694,
Desmond Huaimbukie v. James Baugen (2004) N2589
Paul Gigmai v. MVIL (2004) SC750
William Mel v. Coleman Pakalia & Ors (2005) SC790

Overseas Cases

Kok Hoong v. Leong Cheong Kweng Mines Ltd [1964] AC 993
Pugh v. Cantor Fitzgerald International [2001] EWCA Civ 307

Counsel:

Mr. N. K. Magela, for the Plaintiff

28th May, 2009

1. HARTSHORN, J: Mr. Jack Pinda operated 2 stores in Wabag. He alleges that these stores were looted and damaged by members of the police. He commenced this proceeding seeking amongst others, damages. Default judgment was entered against the Police Commissioner and the State for failing to file a defence. This hearing is for an assessment of damages.

2. There was no appearance on behalf of the Police Commissioner and the State. I was satisfied that the Office of the Solicitor General had been notified of the hearing date and proceeded to hear the matter in the absence of representation on behalf of the defendants. Submissions had been filed on behalf of the State and counsel for Mr. Pinda also relied upon written submissions.

Assessment of damages – law

3. The Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC790 stated:

"The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi J. in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002), National Court, N2182.

His Honour stated:

A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant's defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

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

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The plaintiff in such a case has 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.

5. 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.

The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J.

Kandakasi J. applied those principles recently in the National Court in Desmond Huaimbukie v James Baugen (2004) N2589. We believe His Honour succinctly and correctly stated the law. We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. (See Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337, National Court, Kapi DCJ and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, National Court, Injia J.)........................

Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;

only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability."

The claim

4. From a perusal of the amended statement of claim it is apparent that the cause of action is based upon the tort of negligence - the negligence of the members of the police who committed the acts in respect of which complaint is made, and that the Police Commissioner and the State are allegedly vicariously liable for the tortious acts, pursuant to the Wrongs Act .

5. To succeed in having the State held liable for the tort of a policeman, the court has to be satisfied that:

a) the policeman as a servant or agent of the State committed the tort during the course and within the scope of his employment: s. 1 (1)(a) Wrongs Act, or

b) the policeman as an officer of the State committed the tort while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law: s. 1 (4) Wrongs Act,: The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR 5.

6. In the amended statement of claim it is pleaded amongst others, that the State is vicariously liable for the acts or omissions of its servants or agents and/or employees pursuant to the Wrongs Act, but nowhere is it pleaded that the policemen committed the subject torts during the course and within the scope of their employment or while performing or purporting to perform functions conferred upon them by statute or the underlying law.

7. The pleading in my view, does not properly plead that the Police Commissioner is vicariously liable or that the State is liable pursuant to the Wrongs Act for the torts committed by the policemen. In this regard I respectfully refer to the following comments of Kandakasi J. in Desmond Huaimbukie v. James Baugen (2004) N2589:

"The Supreme Court Decisions made it clear that, the liability of the State in an unlawful police raid, arrest and or any breach of a person's Constitutional right is dependent on two considerations. The first is whether the wrongdoer was an employee or servant of the State at the time of the conduct of action in question. Secondly, if the first question is answered in the affirmative, then the next consideration is whether the circumstances render the State vicariously liable. They did not displace the common law requirements for a plaintiff to show against an employee that his offending employee was in the course of his or her employment pursuing the employer's interest."

and the Supreme Court in Paul Gigmai v. MVIL (2004) SC750:

"It is a fundamental and trite rule of civil procedure that an assessment of damages is based on a judgment on liability in favour of the plaintiff. Damages cannot be assessed in a vacuum, so to speak. In turn, the judgment on liability must be founded on a proper pleading of a cause of action in law...."

8. In the submissions filed on behalf of the State, issue is taken with amongst others, the lack of pleading as to the capacity and state of the policemen when they committed the torts in respect of which complaint is made.

9. This gives rise to the question whether the argument of the State as to the lack of pleading can be considered after default judgment has been entered.

10. Of the 5 points listed by Kandakasi J. in Coecon Ltd (supra) and adopted and approved in William Mel (supra) and PNGBC v. Tole (supra), point 2 is pertinent here. As the State has introduced a matter in respect of which there is nothing pleaded, that matter being that the capacity or state of the policemen when committing the subject torts should have been pleaded if vicarious liability and liability under the Wrongs Act is alleged, pursuant to point 2 of the list, the State is able to take issue on liability on this matter.

11. This interpretation to my mind, accords with the following observations as to the nature of a default judgment by the Privy Council in Kok Hoong v. Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1012:

"default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham L.C. (in New Brunswick Railway Co. v. British & French Trust Corporation Ltd [1939] AC 1,21) they can estop only for what must " necessarily and with complete precision have been thereby determined.""

and the English Court of Appeal in Pugh v. Cantor Fitzgerald International [2001] EWCA Civ 307:

"that on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment."

12. Given that as I have already stated that in my view the pleadings of Mr. Pinda do not properly plead how the Police Commissioner is supposedly vicariously liable or how the State is supposedly liable under the Wrongs Act and given that the State takes issue on this point, as it is entitled to do, I find that the plaintiff has not properly proved that the defendants should pay damages because of vicarious liability or liability under the Wrongs Act for the torts committed by the policeman.

13. As Injia J. (as he then was) stated in Obed Lalip v. Fred Sikiot (1996) N1457:

"Just because the Plaintiff has obtained default judgment does not mean that he is entitled as of right to receive damages."

14. I refuse to make any award of damages in favour of the plaintiff. The costs of and incidental to the assessment of damages shall be paid by the plaintiff to the second defendant.

_____________________________________________________________

Nikiuma Lawyers: Lawyers for the Plaintiff
Office of the Solicitor-General: Lawyers for the Defendants