Gau v G & S Ltd [2018] PGNC 119; N7198 (10 April 2018)

N7198

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1606 OF 2011

BETWEEN:
FUGAMAN GAU, FOR HIMSELF AND MEMBERS OF
SONGUMBE-MARUMBE AND BOIMBE CLANS
Plaintiff

AND:
G & S LIMITED
Defendant

Madang: Cannings J
2016: 5 December,
2017: 13 February,

2018: 10 April

DAMAGES – trespass to land – unlawful entry of land subject to timber authority and felling of timber – assessment of damages after trial on liability.

This was a trial on assessment of damages. The plaintiff succeeded at an earlier trial in establishing liability in trespass against the defendant for its unauthorised entry into two areas of customary land owned by the plaintiff and clan members he represents and the unauthorised harvesting of timber from that land and engagement in other forest industry activities on the land, causing environmental harm. At the trial on assessment of damages, the plaintiff claimed K13,282,813.57 damages for loss of timber cut and exported + K6,837,646.24 for environmental pollution and destruction + K100,000.00 for pain and suffering, the total damages claim being K20,220,459.80, ie approximately K20.2 million. The defendant argued that the plaintiff should, at most, be awarded a notional amount of damages of K20,000.00 as the factual basis of the judgment on liability had been undermined by independent evidence at the trial on assessment of damages.

Held:

(1) General principles for assessment of damages include: the plaintiff has the onus of proving his losses, it is not sufficient to rely on assertions in the statement of claim; corroboration of a claim is required; the fact that damages cannot be assessed with certainty does not necessarily relieve the wrongdoer of the necessity of paying some amount of damages.

(2) The plaintiff was entitled to a notional amount of damages only as: (a) the factual basis of the judgment on liability was drawn into question by independent evidence which suggested that in fact there had been no incursion by the defendant into the plaintiff’s land; (b) the plaintiff’s estimates of the value of the loss of timber cut and exported and for environmental pollution and destruction were based on unreliable assumptions; (c) the plaintiff’s estimates of damage for environmental pollution and destruction in respect of loss of biodiversity and loss of CO-2 (carbon dioxide) emissions credits were based on unrealistic assumptions; and (d) the claim in respect of pain and suffering had no evidentiary basis.

(3) The appropriate award of damages in circumstances where, though the evidentiary basis of the judgment on liability was questionable, that judgment had not been set aside, and the defendant had contributed to the confusion, was K30,000.00. No interest was awarded and the parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Fugaman Gau v G & S Ltd (2016) N6169
Graham Mappa v ELCOM (1992) N1093
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages for trespass to land.

Counsel:

G Pipike, for the Plaintiff
I R Shepherd, for the Defendant

10^th April, 2018

1. CANNINGS J: This has been a trial on assessment of damages for trespass to land. The plaintiff, Fugaman Gau, acting on behalf of Songumbe-Marumbe Clan and Boimbe clan, succeeded at an earlier trial in establishing liability in trespass against the defendant, G & S Ltd. He proved that the defendant had unlawfully entered two areas of customary land in Rai Coast District and logged timber on that land and caused environmental harm (Fugaman Gau v G & S Ltd (2016) N6169).

2. The two areas of land are:

(a) “Songum” land, in the vicinity of Mt Kubari, owned by the plaintiff’s Songumbe-Marumbe Clan; and

(b) “Wel” land in the vicinity of Mt Banaga, owned by the Boimbe clan.

3. Those areas are adjacent to the southern boundary of the Rai Coast Timber Rights Purchase (TRP) area. The defendant lawfully conducts logging and other forest industry activities in that TRP area pursuant to a registered logging and marketing agreement with the holder of the timber permit (No 12-18), Raikos Holdings Ltd. The Rai Coast TRP area has a total concession area of 76,110 hectares and a total net production area of 55,236 hectares. It is divided into four blocks, Nos 1, 2, 3 and 4. The two land areas are adjacent to block 1.

4. The outcome of the earlier trial was a declaration that the defendant had in the period from November 2011 to August 2012 unlawfully entered “Songum” and “Wel” and conducted unlawful logging operations in those areas and committed the tort of trespass to property and was liable in damages to the plaintiff and the clan members he represents.

SUBMISSIONS

5. At the trial on assessment, the plaintiff’s counsel, Mr Pipike, submitted that the plaintiff should be awarded K13,282,813.57 damages for loss of timber cut and exported + K6,837,646.24 for environmental pollution and destruction + K100,000.00 for pain and suffering, the total damages claim being K20,220,459.80, ie approximately K20.2 million.

6. The defendant’s counsel, Mr Shepherd, submitted that the plaintiff should be awarded nothing or, at most, a notional amount of K20,000.00, as the factual basis of the judgment on liability had been undermined by independent evidence at the trial on assessment of damages.

GENERAL PRINCIPLES

7. Some general principles for assessment of damages are particularly pertinent in this case:

➢ the plaintiff has the onus of proving his losses, it is not sufficient to rely on assertions in the statement of claim (Yooken Paklin v The State (2001) N2212);

➢ corroboration of a claim is required (Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331);

➢ the fact that damages cannot be assessed with certainty does not necessarily relieve the wrongdoer of the necessity of paying some amount of damages (Graham Mappa v ELCOM (1992) N1093).

ASSESSMENT

8. Having regard to those principles I uphold the submission of Mr Shepherd, for the defendant, that the plaintiff is not entitled to the amount he is claiming as he has not proven his losses and there is no proper corroboration of the claim. The evidence adduced at the trial on assessment of damages has put a new complexion on this case.

9. I find, based on the evidence of Gunther Joku (Managing Director, Conservation and Environment Protection Authority) and Goodwill Amos (Manager, Environment and Climate Change, Papua New Guinea Forest Authority), that there are reasonable grounds on which to believe that the judgment on liability was given on an incomplete evidentiary basis. It appears that, in light of a field verification investigation undertaken by officers of the Conservation and Environment Protection Authority and a report prepared by the Authority in October 2016, in fact, the defendant did not, in the period from November 2011 to August 2012 or at any other time, make an incursion into the plaintiff’s land and harvest timber on it and do any environmental damage to it.

10. This does not mean that the judgment on liability is set aside but it makes it virtually impossible for the plaintiff to prove that the extent of the defendant’s entry into the subject land is as great as what has been claimed or that any unlawful harvesting of timber has taken place. No new evidence has been forthcoming from the plaintiff which would enable the court to make a finding that would quantify the extent to which the defendant had entered the land and engaged in unlawful harvesting of timber.

11. It is significant that in the judgment on liability no finding of fact was made as to the extent to which the defendant had entered the subject land and conducted logging operations on it. It was reasonably to be expected that the evidence which would enable the court to make such findings would be forthcoming at the trial on assessment of damages. However, that has turned out not to be the case.

12. On the contrary it is the defendant that has presented evidence from independent and authoritative sources (two statutory regulatory authorities), which has undermined the factual basis of the judgment on liability.

13. The only evidence for the plaintiff at the trial on assessment of damages was:

• exhibit P1: an affidavit by the plaintiff containing copies of export permits suggesting that in the period from January to October 2012 the defendant was granted permission to export, from the Rai Coast TRP area, 13,193 cubic metres of saw veneer logs valued at US$1,104.368.00; and
  
• exhibit P2: an affidavit by Dr Cossey K Yosi, forestry consultant, South Pacific Forestry and Environmental Consultancy, annexing a “desktop consultancy report” he prepared for the plaintiff entitled “Post-Logging Damage Assessment Study of Songum and Wel Customary Land in Block 1 of Rai Coast Timber Rights Purchase Area, TP # 12-18, Astrolabe LLG, Rai Coast District, Madang Province”.
  

14. Neither affidavit contained any evidence on which the court could make findings of fact that would quantify the area of land on which the defendant harvested timber or the quantity of timber harvested and exported. Dr Yosi concluded that the plaintiff had suffered damage to a value of approximately K31.7 million. This figure was based on assumptions about the area of land on which the defendant conducted logging (assumed to be 1,249.25 hectares), the timber harvested by the defendant (assumed to be 17,769 cubic metres per hectare) and the export price of the timber (assumed to be US$600.00 per cubic metre). Dr Yosi’s estimates of damage by environmental pollution and destruction in respect of loss of biodiversity and loss of CO-2 (carbon dioxide) emissions credits are based on assumptions as to existence of markets, which have no evidentiary basis.

15. I uphold Mr Shepherd’s submission that all those assumptions are unverified, unsupported by the evidence and unrealistic. Dr Yosi’s evidence is of no probative value. Furthermore the claim in respect of pain and suffering has no evidentiary basis.

16. The evidence in support of the plaintiff’s claim is properly described as scanty, unreliable and uncorroborated.

17. However, it must be considered that the judgment on liability was not, on application or appeal or review, set aside. I also consider that the defendant has contributed to the confusion by a lack of effort and acumen in defending the trial on liability (when its lawyers were not its present lawyers). It is only now, well after the order for liability has been entered, that the independent evidence that was required at the earlier trial, has come to light. In these unusual circumstances I call upon the third general principle for assessment of damages outlined above: the fact that damages cannot be assessed with certainty does not relieve the wrongdoer – in this case, the defendant – from liability for something. I have decided to award a notional sum of K30,000.00.

CONCLUSION

18. The plaintiff will be awarded a total sum of K30,000.00, payable in 90 days. The question of whether any interest is payable on that sum is a matter of discretion, as is the question of costs of the proceedings. As there is no clear winner of the case, it is appropriate that no interest be payable on the award of damages and that the parties bear their own costs.

ORDER

(1) The defendant shall pay to the plaintiff total damages of K30,000.00, without interest, being a total judgment sum of K30,000.00, within 90 days after the date of service of the order on the defendant’s lawyers.

(2) Previous orders as to costs remain in place.

(3) The parties shall bear their own costs of the trial on assessment of damages.

Judgment accordingly,
_____________________________________________________________
GP Lawyers: Lawyers for the Plaintiff
Ashurst PNG: Lawyers for the Defendant