N11299
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HR (WS) NO. 36 OF 2023

BETWEEN:
FRANK NONDOPA
Plaintiff

AND:
NOLEN ELIS
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

MADANG: NAROKOBI J
10 APRIL, 16 MAY 2025

LIABILITY– Whether liability should be re-visited – whether cause of action adequately pleaded.

DAMAGES – Whether plaintiff has proven its damages on the balance of probability

Facts

The Plaintiff has established liability by default judgment for negligence and breach of human rights. He now claims damages for these two causes of action. However, an issue has arisen as to whether liability should be revisited.

Held:

(1)	The court should conduct a cursory review of the pleadings and the evidence to confirm the issue of liability.

(2)	After a review of the issue of liability it was found that there was no cause of action for breach of human rights, except for the finding of negligence. 

(3)	Despite confirming liability for negligence, the pleadings were vague, such that the Plaintiff has not discharged his onus of proving his claim on the balance of probability, and the claim should be dismissed.

Cases cited
Mel v Pakalia (2005) SC790

Counsel
Mr B Wak for the plaintiff
Mr Manihambu for the defendants

DECISION

1.	NAROKOBI J: The Plaintiff has filed proceedings against the Defendant seeking damages for damaging his vehicle in a car accident on 26 November 2017.  The Plaintiff claims general damages arising from negligence, and compensation for breach of human rights. 

2.	On 9 April 2024, I entered liability against the Defendant, with damages to be assessed.

3.	The summary of the facts pleaded in the statement of claim are as follows.  On 26 November 20017, between 4.00pm and 5.00pm, the Plaintiff was driving his vehicle, a NPR Isuzu Truck, blue colour with registration number LBQ 027 on the Madang-Lae highway at an area called Gusap, when the First Defendant drove in to him a government car, with number plate ZGT 376.  The First defendant accepted responsibility and paid K14,000.00 in cash at the Ramu Police Station witnessed by the police stationed there.  The vehicle was under a loan, and the Plaintiff demanded payment to offset the loan.  At the end of November 2018, the First Defendant paid another K14,000.00, but by than the bank had repossessed the vehicle.  The Plaintiff asserts that during 2017 and 2018 his vehicle was grounded, and he could not repay the loan.

4.	On the basis of the above facts, the Plaintiff pleads negligence and breach of human rights.

5.	The issue for me to determine are two-fold.  The First is, whether I should re-visit the issue of liability.  If liability is confirmed, then the next issue, would be the quantum of damages that should be awarded to the Plaintiff.

6.	In the Supreme Court case of Mel v Pakalia (2005) SC790, it was held that the court should make a cursory enquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity.  I have followed that Supreme court decision to consider the pleadings.  I have done that, and I note that although, the pleadings are not detailed the course of action in negligence is clear enough.  I maintain this cause of action. However as to breach of human rights, I am not satisfied that there has been a forceful expropriation of the Plaintiff’s property under s 53 of the Constitution.  I dismiss that claim.  Similarly, I see no cause of action under s 41 of the Constitution, on the basis that the Defendants actions are harsh and suppressive. I dismiss the claim.   

7.	I refer back to the question of negligence. It is sufficiently pleaded, as I see the Plaintiff has pleaded a duty of care, that it was breached and they suffered damages.  Should I now continue to consider damages?

8.	This is where the submission of the State comes into play.   There are no pleadings in the statement of claim to explain the following questions:

•	What is the vehicle NPR Isuzu Registration Number LQB 027 used for? Is it a PMV truck? 
•	Was the vehicle being used to make money to pay its loan?
•	How long was the vehicle off the road, and when was it fixed and put back on the road?
•	When did the bank write to the Plaintiff to say that the Plaintiff was falling into arrears, and the Plaintiff was expected to make payments?
•	Why did not the Plaintiff ask for the value of the car?

9.	Essentially the question boils down to the Plaintiff providing sufficient pleadings to connect his losses to the actions of the Defendants.  From the question I have raised, this has not been done.

10.	In the Mel v. Pakalia case, the court held that if the pleadings are confusing the Plaintiff would not have discharged the onus of proving his case on the balance of probability.  I find this to be the case here.

11.	For these reasons, I will dismiss the entire proceedings, and order that the Plaintiff pays the Defendant’s costs, to be taxed if not agreed.

12.	The formal orders of the court are as follows:

1)	The entire proceeding is dismissed.
2)	Except for any order of the costs in favour of the Plaintiff, the cost of the entire proceedings are to be paid by the Plaintiff, to be taxed if not agreed.
3)	Matter is considered determined, and the file is closed.
4)	Time is abridged.

13.	     Judgement and orders accordingly.   
________________________________________________________________
Lawyers for the plaintiff: Bradley & Company Lawyers
Lawyers for the defendants: Acting Solicitor-General