Yebrei v Kailuwe [2022] PGNC 20; N9420 (4 February 2022)

N9420
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 741 OF 2014

BETWEEN
MERVIN YEBREI Deceased by his Customary Next of Kin ANDREW YEBREI, on behalf of himself and the surviving spouse and child of the deceased
Plaintiff

AND
FIRST CONSTABLE DANIEL YOM KAILUWE
First Defendant

AND
GEOFFREY VAKI
COMMISSIONER OF POLICE
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2021: 7^th December
2022: 4^th February

DAMAGES – Assessment of damages – Death of deceased – Unlawful police shooting – Award of damages – Special damages – Loss of solatium – Loss of income – Loss of consortium – Loss of parental care, love, companion and guidance – Punitive damages

Cases Cited:
Abel Tomba v The State (1997) SC518
Helen Jack v. Marius Karani & The State [1992] PNGLR 391
John Wiwa v. The State (2012) N5271
Mumukrui Kopil v. John Wakon, Commissioner of Police & The State (2001) N2065
Pike Dambe v. Augustine Peri & The State [1993] PNGLR 4
Paul Dorum v. The State [1994] PNGLR 555

Counsel:
Mr. T. Waisi, for Plaintiff
No appearance, for First Defendant
Mr. T. Mileng, for Second and Defendant

JUDGMENT

4^th February, 2022

1. MAKAIL, J: This is a trial on assessment of damages following entry of judgment on liability at trial by another presiding judge on 19^th April 2016. Trial on assessment of damages did not proceed until 7^th December 2021. Parties elected to rely on affidavits that have been filed with no cross-examination of witnesses. Submissions on assessment of damages followed suit.
Background Facts

2. The plaintiff Andrew Yebrei is the father of the deceased Mervin Yebrei and is suing the defendants as the customary next of kin of the deceased on behalf of himself and the surviving spouse and child of the deceased for the death of the deceased.

3. The deceased was shot by the first defendant with a firearm during a domestic argument between the deceased and the deceased’s wife at Lumi Camp, Yawasoro Road No 2, Wewak, East Sepik Province on the evening of 20^th July 2013. The deceased was rushed to the hospital but died of massive loss of blood from the gunshot wounds.

4. In terms of damages, at paragraphs 33 to 40 of the statement of claim, the plaintiff sought the following:

(1) General damages for loss of life and lifetime support of a biological son.

(2) In the alternative, compensatory damages for pain and suffering endured by the surviving family members due to the absence of the deceased.

(3) Special damages comprising of:

(a) Loss of fortnightly wages earned, as a Recorder, at South Seas Tuna Corporation.
(b) Medical bills and morgue fees.
(c) Burial expenses.
(d) Transport costs.
(e) Melanesian customary obligation payments and
(f) Emotional pain and loss.

(4) Damages for loss of consortium by the surviving spouse of deceased.

(5) Damages for loss of a parent, loss of love, care, companionship and guidance expected from the deceased, by his surviving child.

(6) Punitive damages to punish the first defendant.

(7) Interest.

(8) Legal costs.

Evidence
5. The plaintiff relied on his affidavit sworn 18^th December 2014 and filed 19^th December 2014. The defendants filed no affidavit in response.

General damages for loss of life and lifetime support of a biological son
6. The plaintiff’s counsel did not articulate this head of damages and the sum claimed in his written submission. Notwithstanding this, I agree with Mr Mileng of counsel for the second and third defendants that what the plaintiff seeks is indeed damages for economic loss or loss of income because of the death of the son. Because of that, no award will be made, but it will be considered under special damages for loss of fortnightly income from South Seas Tuna Corporation.

In the alternative, compensatory damages for pain and suffering endured by the surviving family members due to the absence of the deceased
7. Again, counsel for the plaintiff’ did not articulate the basis of a claim under this head of damages and the sum claimed in his written submission. Notwithstanding this, I agree with Mr Mileng that what the plaintiff seeks is indeed damages for economic loss or loss of income because of the death of the son. Because of that, no award will be made but it will be considered under special damages for loss of fortnightly income from South Seas Tuna Corporation.

Special damages

8. The plaintiff claimed special damages. As Mr Mileng correctly submitted, given its special nature, special damages must be strictly pleaded and proved in accordance with Order 8, rule 33 of the National Court Rules. Special damages will be assessed and awarded if the plaintiff is able to meet these criteria.

Special damages - Loss of fortnightly wages earned, as a Recorder, at South Seas Tuna Corporation
9. The only evidence from the plaintiff is a letter from the HR Officer of South Seas Tuna Corporation Ms Janet Tarangun dated 27^th August 2013 verifying the plaintiff’s assertion that the deceased was employed as a Recorder in the Cold Storage section of the Production Department at the time of his passing. However, the letter did not state the sum earned by the deceased, as pay, per fortnight.

10. There is also no record of a pay slip or bank statement from the plaintiff as proof of the deceased’s pay to support the plaintiff’s counsel submission that loss of income should be assessed at K200.00 per fortnight. In the absence of proof, it is difficult to be précised in the monetary loss of the deceased per fortnight and uphold the plaintiff’s counsel submission for an award of K8,000.00 for past loss of income and K130,000.00 for future loss of income.

11. Mr Mileng submitted that as there is no proof, no damages should be awarded. However, as there is proof that the deceased was employed with South Seas Tuna Corporation, a nominal sum of K10,000.00 is awarded as loss of income.

Special damages - Medical bills and morgue fees
12. In his written submission, counsel for the plaintiff sought no award of damages for medical bills and morgue fees. In any event, in his affidavit (supra) the plaintiff did not outline the kind of medical bills and morgue fees that were incurred and the amount spent as proof of these fees. There are not even receipts of payments produced as proof of these fees. No award of damages will be made for medical bills and morgue fees.

Special damages - Burial expenses
13. In his written submissions, counsel for the plaintiff sought no award of damages for burial expenses. In any event, in his affidavit (supra) the plaintiff did not outline the kind of expenses spent for the burial and the amount spent as proof of this expense. An award of burial expenses is refused.

Special damages - Transport costs
14. Similarly, in his written submission, counsel for the plaintiff sought no award of damages for transport costs. In any event, in his affidavit (supra) the plaintiff did not outline the kind of costs spent on transport and the amount spent including receipts of payment as proof of this cost. An award of transport costs is refused.

Special damages - Melanesian customary obligation payments
15. In his written submissions, counsel for the plaintiff sought no award of damages for Melanesian customary obligation payments. Also, it is unclear if this head of claim is recognised by law. Counsel also made no submissions articulating the legal basis of this claim. Finally, in his affidavit (supra) the plaintiff did not outline the kind of customary obligation payments and the amount spent or value of the items as proof of this head of claim. No award is made for this claim.

Special damages - Emotional pain and loss
16. This claim is indeed a claim for loss of solatium under Section 29 of the Wrongs (Miscellaneous Provisions) Act, Ch 297 which allows the Court to award a sum, not exceeding, K600.00, “by way of solatium for the suffering caused to a parent by the death of the child”. I award K600.00.

Damages for loss of consortium by the surviving spouse of deceased
17. Damages under this head are awarded for the purpose of compensating the surviving spouse for the impact of the death has had on the spousal relationship such as loss of love, affection and sexual relations. Proof of this head of damages includes proof of a marriage or partner relationship at the time of death.

18. In this case there is no evidence from the spouse of the deceased that she was married to the deceased as asserted by the plaintiff. On the other hand, the plaintiff asserted that the deceased was married by custom. Counsel for the plaintiff submitted that K5,000.00 is a fair and reasonable sum to award. On the plaintiff’s word, there will be an award of K5,000.00 to the spouse of the deceased for loss of consortium.

Damages for loss of a parent, loss of love, care, companionship and guidance expected from the deceased, by his surviving child
19. This head of damages can be easily confused with damages for loss of solatium. However, when a person dies, the dependants especially the children grieve for the loss of the deceased. Solatium is awarded as an acknowledgement of grief by the dependants of the deceased.

20. Under this head of damages, it is intended to compensate the dependants of the deceased for the physical loss of the deceased, that is, the deceased is no longer around for the dependants especially the spouse and children and to provide for them. The plaintiff’s counsel submitted a global sum of K8,000.00 be awarded while Mr Mileng submitted that no award should be made because the plaintiff has not pleaded and particularised this head of damages in the statement of claim to put the defendants on notice of this claim.
21. However, it is noted that it has been sought as a relief and a very brief submission was made by the plaintiff’s counsel in support of it. For these reasons, I am prepared to award a global sum of K8,000.00 to compensate the dependants for the loss of the deceased. A global sum of K8,000.00 is awarded. The plaintiff asserted that the deceased left behind a wife who was pregnant at the time of his passing. On his word, I order that the sum of K8,000.00 be paid to the account of the Registrar of the National Court to be held in trust until the dependent child reaches the age of maturity. The personal details of the dependent child shall be submitted to the Registrar to facilitate the payment for the benefit of the dependent child.

Punitive damages to punish the first defendant
22. The plaintiff’s counsel referred to past cases in Pike Dambe v. Augustine Peri & The State [1993] PNGLR 4; Helen Jack v. Marius Karani & The State [1992] PNGLR 391; Paul Dorum v. The State [1994] PNGLR 555; Mumukrui Kopil v. John Wakon, Commissioner of Police & The State (2001) N2065 and John Wiwa v. The State (2012) N5271 where K30,000.00 and K60,000.00 were awarded as punitive damages against the State.

23. However, in this case the shooting arose from a domestic setting between the deceased and his wife. To teach the first defendant a lesson and based on the Supreme Court decision in Abel Tomba v The State (1997) SC518, he will be ordered to personally pay punitive damages in the sum of K10,000.00 to the plaintiff for the death of the deceased.

Damages for breach of constitutional rights under Sections 35, 36, 37 and 41 of the Constitution.

24. Finally, it is noted that at paragraphs 26 and 27 of the statement of claim, the plaintiff pleaded the conduct of the first defendant was in breach of the constitutional or fundamental rights of the deceased under:
(1) Section 35 of the Constitution – Right to Life.
(2) Section 36 of the Constitution – Freedom of Inhuman Treatment
(3) Section 37 of the Constitution – Protection of the Law

(4) Section 41 of the Constitution – Proscribed Acts

25. Unfortunately, counsel for the plaintiff did not pursue this head of damages in his written submission. Because of that, Mr Mileng did not canvass it in his submissions in response. In the absence of submissions from both counsel, it would be most unfair to give consideration to it and make an award. Nothing further will be said on this head of damages.

Summary of Awards
26. A summary of the awards are:

(1) General damages for loss of life and lifetime support of a biological son.

Nil

(2) In the alternative, compensatory damages for pain and suffering endured by the surviving family members due to the absence of the deceased.

Nil

(3) Special damages:

(a) Loss of fortnightly wages earned, as a Recorder, at South Seas Tuna Corporation.

K10,000.00

(b) Medical bills and morgue fees

Nil

(c) Burial expenses

Nil

(d) Transport costs

Nil

(e) Melanesian customary obligation payments

Nil

(f) Emotional pain and loss

K600.00

(4) Damages for loss of consortium by the surviving spouse of deceased.

K5,000.00

(5) Damages for loss of a parent, love of love, care, companionship and guidance expected from the deceased, by his surviving child.

K8,000.00 to be paid to account of the Registrar of the National Court to hold in trust until the dependent child reaches the age of maturity. The personal details of the dependent child shall be submitted to the Registrar forthwith for the benefit of the dependent child.

(6) Punitive damages to punish the first defendant.

K10,000.00 to be paid personally by the first defendant.

27. Except for the sum awarded for punitive damages, adding the rest of damages awarded, the second defendant is ordered to pay a total sum of K23,600.00 to the plaintiff. The first defendant is ordered to personally pay the sum of K10,000.00 as punitive damages to the plaintiff.

Interest
28. The plaintiff claimed interest at the rate of 8 % under the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52. This Act has been repealed and replaced by Judicial Proceedings (Interest on Debts and Damages) Act, 2015. Pursuant to Sections 4 and 6, the applicable rate of interest is 2% for pre-judgment and post-judgment interest.

29. While the purpose of awarding interest is to compensate the plaintiff for being kept out of money and accepting that Civil Court Track one has a high number of pending cases, the plaintiff failed to explain why it took so long for him to prosecute this matter.

30. Sections 4 and 6 conferred discretion on the Court to award interest at the rate of 2% on whole or part of the judgment sum and from date of cause of action or date of commencement of proceeding or date of trial to date of judgment and until final settlement.

31. As the plaintiff failed to explain the delay in prosecuting the matter, interest at the rate of 2% is awarded on part of the judgment sum and will ran from date of trial of 7^th December 2021 to date of judgment and until final settlement. As to which part of the judgment sum interest will be awarded, it will be on the total sum ordered against the second defendant of K23,600.00.

Legal costs

32. As the plaintiff has been successful in proving some of his damages, he will be awarded costs of the proceeding, to be paid by the second defendant and to be taxed, if not agreed.

Order

33. The orders of the Court are:

1. The second defendant shall pay the total sum of K23,600.00 to the plaintiff forthwith.
2. Out of the total judgment sum of K23,600.00, a sum of K8,000.00 shall be deducted and paid to the account of the Registrar of the National Court to be held in trust until the dependent child reaches the age of maturity forthwith.
3. The first defendant shall personally pay the sum of K10,000.00 to the plaintiff as punitive damages.
   
4. The second defendant shall pay interest at the rate of 2% on the judgment sum of K23,600.00 from the date of trial on assessment of damages of 7^th December 2021 to date of judgment and until final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
5. The second defendant shall pay the costs of the proceeding, to be taxed, if not agreed.
   

6. Time shall be abridged.

________________________________________________________________Waisi Lawyers: Lawyers for Plaintiff

Solicitor General: Lawyers for Second Defendant