SC790

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 134 0F 2003

WILLIAM MEL
Appellant

V

COLEMAN PAKALIA
First Respondent

COMMISSIONER OF POLICE
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI: LOS J, JALINA J, CANNINGS J
28 FEBRUARY, 1 JULY 2005

APPEAL

Negligence – motor vehicle accident – negligent driver caused death of off-sider in PMV – driver of PMV paid compensation to relatives of the deceased – customary compensation – trial on assessment of damages after entry of default judgment – trial judge dismissed proceedings as disclosing no cause of action – whether trial judge acted within the scope of the proceedings – whether error of law made – whether trial judge should have assessed damages – whether there was sufficient evidence before the National Court to warrant an award of damages – power of Supreme Court to make an award of damages – whether case should be remitted to the National Court.

Held: trial judge erred in law – appeal upheld – Supreme Court assesses damages of K15,900.00 – plus interest and costs – remarks on non-appearance by Solicitor-General.

Cases cited
Albert Baine v The State (1995) N1335
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Desmond Huaimbukie v James Baugen (2004) N2589
Graham Mappa v PNG Electricity Commission [1995] PNGLR 170.
Inabari v Sapat [1991] PNGLR 427
Jonathan Mangope Paraia v The State (1995) N1343
Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Michael Buna v The State (2004) N2696
MVIT v Pupune [1993] PNGLR 370
MVIT v Tabanto [1995] PNGLR 214
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Peter Wanis v Fred Sikiot and The State (1995) N1350
Repas Waima v MVIT [1992] PNGLR 254
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Waima v MVIT [1992] PNGLR 254
William Mel v Coleman Pakalia, Joseph Kupo and The State (2003) N2477
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

Counsel:
P Parkop for the appellant
No appearance for the respondents

BY THE COURT:

This is an appeal against a decision of Gavara-Nanu J in the National Court, in which his Honour dismissed a claim for damages arising out of a motor vehicle accident. (See William Mel v Coleman Pakalia, Joseph Kupo and The State (2003) N2477.)

BACKGROUND

The accident

The motor vehicle accident happened on the evening of 14 December 2000 in Port Moresby. The appellant, William Mel, was driving a public motor vehicle (PMV) bus along Kaubebe Street, Boroko in the direction of the Boroko market. Also in the bus were Raus Rap, a crewmember, and Rosa Mel, the appellant’s wife. Behind the PMV was a police vehicle, a Toyota Landcruiser, driven by the first respondent, Coleman Pakalia. Near the intersection with Vaivai Avenue the police vehicle crashed into the back of the PMV and it overturned. Rosa Mel was injured, but her injuries are not the subject of these proceedings. Raus Rep was also injured, and died because of the injuries. 

Appellant’s allegations

The appellant claims that after the accident he was arrested by the police and detained at the Boroko Police cells. He says he was beaten up by the police who blamed him for the accident. He, however, has maintained all along that he did not cause the accident. It was caused by Coleman Pakalia, the police officer who was driving the Toyota Landcruiser. The appellant says that despite being blameless, he was charged over the accident and faced proceedings in the District Court. He was found not guilty. The question of whether the appellant was beaten up and suffered injuries is not at issue in the present case. They are allegations only. We mention them here only because they were made in an affidavit in the National Court and they help to provide the background of this appeal.

Compensation claims

The appellant claims that he incurred considerable costs in transporting the body of the deceased to the Western Highlands Province and paying compensation to the deceased’s relatives and other related expenses. He claims that he had to do this as both he and the deceased are from Western Highlands Province where payback killing and compensation claims arising from deaths are still the norm. 

On 3 July 2002 the appellant’s lawyers, Powes Parkop Lawyers, filed a writ of summons in the National Court on behalf of the plaintiff. The parties named as the defendants were the same as the respondents to the current appeal: Coleman Pakalia, the Commissioner of Police and the State. 

The statement of claim endorsed on the writ pleaded that Coleman Pakalia was negligent, reckless and careless in his driving of the Toyota Landcruiser. He caused the collision and the consequent death of the deceased and injuries to other persons. Coleman Pakalia was under the influence of liquor, he failed to stop and give way when required to, he was driving at an excessive speed and he ought to have foreseen that if he failed to drive carefully and diligently he could cause an accident. Coleman Pakalia breached the duty of care he owed to the appellant and the passengers in the appellant’s vehicle, thereby causing injuries to the appellant and the passengers in the appellant’s vehicle. 

The Commissioner of Police was joined as a second defendant on the ground that he was the first defendant’s immediate employer and responsible for his acts and omissions. 

The State was joined as the third defendant as it was the ultimate employer of the first and second defendants. It was claimed that both the second and third defendant were vicariously liable for the acts and omissions of the first defendant. 

The first defendant was sued in both his personal capacity and his capacity as agent or servant of the second and third defendant "under principles of vicariously liability and under the Wrongs (Miscellaneous Provisions) Act.

The main remedy sought by the appellant was an order for damages including exemplary, punitive and special damages.

Special damages were particularised as follows:

•	compensation paid to the deceased’s family in Mt Hagen (K12,000.00) and ten pigs (K10,000.00);

•	return airfares from Mt Hagen to Port Moresby for three people to accompany the deceased’s body (K1,800.00);

•	purchase of coffin and clothes to dress the deceased (K500.00);

•	hire of vehicle from Kagamuga Airport to Warakum and use of that vehicle for seven days during the mourning period (K1,400.00);

•	fuel expenses for use during the mourning period in Mt Hagen K500.00;

•	accommodation and other associated expenses (K5,000.00).

No defence

On 19 July 2002 the Police Legal Services Unit of the Department of Police, Konedobu, filed a notice of intention to defend on behalf of the first defendant. However neither the second nor the third defendant filed a notice of intention to defend and none of the defendants filed a defence.

Default judgment

On 18 November 2002 Powes Parkop Lawyers filed a notice of motion for default judgment.

On 14 April 2003 the motion was upheld by the National Court at Waigani and default judgment was entered in favour of the plaintiff. The Court also made an order that the matter be adjourned for trial on assessment of damages.

Trial

The trial was conducted by Gavara-Nanu J on 6 and 8 August and 13 October 2003.

On 6 August 2003, Mr Parkop, for the plaintiff, produced two affidavits. One by the plaintiff and the other by the plaintiff’s wife. The plaintiff was subject to cross-examination by the defendant’s lawyer, Ms Lilih.

On 8 August 2003 the trial resumed. Both oral and written submissions were made on behalf of all parties. Mr Parkop withdrew the claim for general, exemplary and punitive damages. The claim was restricted to special damages, ie those particularised in the statement of claim. Mr Parkop asserted that the plaintiff did not need to have detailed receipts and records of the expenditure that he incurred. The plaintiff was in a difficult situation and he was required to come good with a claim for compensation by the deceased’s relatives as quickly as possible. He did not have time to keep records or receipts. In support of that proposition he referred to the judgment of Woods J in the National Court in Repas Waima v MVIT [1992] PNGLR 254.

Ms Lilih submitted that the plaintiff had not produced sufficient material to support the claims that he spent K20,000.00 of his own money. She referred to the accident report prepared by the police, which showed that the plaintiff was not actually the owner of the bus. The owner of the bus, she submitted, was Raymond Mel, the plaintiff’s brother. This cast considerable doubt on the plaintiff’s claim that he would have had K20,000.00 cash available to pay for funeral expenses and the like, at short notice. The plaintiff failed to provide evidence of local custom eg a verifying affidavit from an elderly person from his area of Western Highlands, to verify normal practices and customs in the event of a death. In support of that proposition she referred to the cases of Inabari v Sapat [1991] PNGLR 427 and Graham Mappa v PNG Electricity Commission [1995] PNGLR 170.

His Honour the trial judge then reserved his decision.

On 13 October 2003, however, his Honour recalled the lawyers to address a query on the Wrongs (Miscellaneous Provisions) Act. His Honour asked Mr Parkop if the claim were based on that Act and put to him that there was perhaps an issue as to whether claims under that Act were restricted to the immediate relatives of the deceased person. His Honour heard from both counsel and adjourned again.

Judgment 

On 17 October 2003 his Honour gave judgment, dismissing the plaintiff’s claim for damages. 

His Honour held that the plaintiff’s claim was based on Section 25 of the Wrongs (Miscellaneous Provisions) Act. Such a claim can only be for the benefit of the persons mentioned in Section 26 of the Act. The plaintiff is not one of those persons. Therefore he has no cause of action. Mr Parkop’s alternative proposition, that the common law principles of vicarious liability should apply, was rejected. To apply those principles would enlarge the scope of Section 26 and would amount to the court legislating, which is not its function. His Honour stated:

It is clear that the plaintiff’s claims are based on Section 5 of the Wrongs (Miscellaneous Provisions) Act, and as such, they can only be for the benefit of the persons mentioned in Section 26 of the Act. The plaintiff is not one of those persons mentioned in Section 26 of the Act. It is clear from the evidence that the plaintiff voluntarily took the body of the deceased to Mt Hagen and paid for the funeral and other related expenses including the K12,000.00 compensation to the relatives of the deceased. He did that because he felt responsible for the death of the deceased. 

Unfortunately, he is not one of the persons named in Section 26 of the Act, and therefore he cannot invoke Section 25 of the Act to make claims against the defendants for the death of the deceased.

The submission by Mr Parkop that, if the plaintiff is excluded by Section 26 of the Act, then the common law principle of vicarious liability should apply, is in effect asking this Court to enlarge the scope of Section 26. Such submission cannot be sustained because if this Court did that, it would effectively be legislating, which is not the function of this Court. The Court’s task is to interpret and give effect to Section 26.

Furthermore, the common law principles of vicarious liability if applied would be in direct conflict with Section 26, in which case the statute must prevail and be given effect to over the common law.

His Honour acknowledged that the trial was for assessment of damages but held that a plaintiff must still establish that he has a proper cause of action. His Honour stated:

The plaintiff in this case obtained a default judgment against the defendants because the defendants failed to file a defence against the plaintiff’s claims. Thus the matter comes before me for assessment of damages. However, the claims must be valid and legal before any damages can be assessed and awarded to the plaintiff. The fact that the plaintiff had obtained a default judgement against the defendants does not mean that he is automatically entitled to damages against the defendants. He must first establish that his action is proper and legal and prove his claims before any damages can be awarded to him. See Obed Lalip and Ors v Fred Sekiot and The State (1996) N1457 and Komaip Trading v George Waugulo and The State [1995] PNGLR 165.

Clearly, the plaintiff does not qualify under Section 26 of the Wrongs (Miscellaneous Provisions) Act to bring this action. In other words, he lacks the locus standi and thus has no interest in the matter. The end result is that the plaintiff has no cause of action against the defendants. The proceedings must therefore be dismissed as not disclosing a reasonable cause of action pursuant to Order 12 Rule 40 of the National Court Rules. The proceedings are also an abuse of process.

His Honour further stated that in any event there were serious gaps in the plaintiff’s case:

It is trite law that, even though a default judgment was obtained by the plaintiff, he still has to prove his claims by adducing supporting evidence. In this case the plaintiff has not adduced any evidence to prove his claims, for instance, he has not produced the tickets which he says he bought for three people to travel to Mt Hagen. He also has not produced any receipts of the monies he says he spent on all the funeral and other related expenses. He also says that according to his custom he had to pay compensation to the relatives of the deceased, but he has not called evidence to show that he has such custom. In any case, the plaintiff also has not pleaded such a custom to enable him to place any reliance on it. See Pawa Kombea v Semal Peke [1994] PNGLR 572. These are serious gaps in the plaintiff’s case.

It follows that the plaintiff’s claims must be dismissed.

His Honour was indicating that if he had not held that there was no cause of action, he would have still not awarded any damages as the plaintiff had not produced sufficient evidence to substantiate his claim.

THE APPEAL

On 26 November 2003 the plaintiff, William Mel, instituted an appeal against the whole of Gavara-Nanu J’s judgment.

Grounds

The plaintiff, now the appellant, relies on eight grounds of appeal:

1	That his Honour erred in law and in fact in finding that the Plaintiff’s claim before the National Court was based under S.25 of the Wrongs (Miscellaneous Provisions) Act when the pleading therein clearly shows that the claims were based on negligence and not on a statutory right under the said Act. 

2	That his Honour erred in law and in fact in finding that the Appellant had no standing under S.25 of the Wrongs (Miscellaneous Provisions) Act when the Plaintiff’s claim before the Honourable Court was clearly based on negligence and not a claim based on wrongful death so as to bring it within S.25 of the said Act.

3	His Honour erred in law in revisiting the issue of liability when that issue had been determined by the Honourable Court on a default basis.

4	That the finding and judgment of his Honour if allowed to stand would be harsh and oppressive in the circumstance as it would deny the Appellant legitimate relief when the Appellant had clearly suffered loss and injuries which entitle him to relief against the Respondents.

5	That the judgment of his Honour was such that no Court doing justice would have reached the conclusion and judgment that his Honour did.

6	That the judgement of his Honour is against the weight of the evidence and the pleadings before the Honourable Court.

7	That in arriving at his judgment, his Honour breached the Appellant’s right to natural justice in that his Honour failed to give prior warning to the parties before recalling them at very short notice to address the Court on S.26 of the Wrongs (Miscellaneous Provisions) Act. 

8	Other grounds may be available on perusal of the transcript.

The appellant asks the Supreme Court to make the following orders:

1	That the Court uphold the Appellant’s Appeal and quash the decision of the Court below made on the 17th of October 2003.

2	That this Court grants the amount sought by the Appellant of K46,000.00 as damages against the Defendants.

3	That the Appellant have his costs of this Appeal and in the Court below.

4	Any other orders the Court deems to make or as otherwise sought.

Overview of grounds of appeal

Several of the grounds of appeal raise significant issues of law that require careful consideration. Others do not and can be dealt with quickly. 

Grounds 1 and 2 allege that his Honour misconceived the nature of the plaintiff’s claim. This is an important issue but they both seem to say the same thing, so they will be dealt with together.

Ground 3 alleges that his Honour revisited the issue of liability when his attention should have been confined to an assessment of damages. This is a significant issue and will be dealt with separately.

Grounds 4 and 5 allege that the judgment was harsh and oppressive and that no court doing justice would have made it. These are not proper grounds of appeal. Order 7, Rule 8(c) of the Supreme Court Rules requires that a notice of appeal "state briefly but specifically the grounds relied upon in support of the appeal". Grounds 4 and 5 are criticisms of the judgment, lacking in specificity. Order 7, Rule 9 of the Supreme Court Rules requires that a ground of appeal be clear and precise and allege with particularity that the judgment appealed against contained an error of law or fact. It states: 

Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

A ‘harsh and oppressive’ argument might have been entertained if it were couched in terms of Section 41 (proscribed acts etc) of the Constitution. However, as they stand, grounds 4 and 5 are too vague and subjective to warrant consideration, so we dismiss them.

Ground 6 alleges that the judgment was against the weight of the evidence. It is also too vague and offends against Order 7, Rule 9 of the Supreme Court Rules. So we dismiss ground 6.

Ground 7 asserts that the trial judge breached the principles of natural justice by recalling the parties at short notice to address the issue about the Wrongs (Miscellaneous Provisions) Act. It is another vague assertion, bearing the hallmarks of a criticism rather than a ground of appeal. If it were precisely pleaded and proven, it would be worth considering. There is, however, insufficient material before the Court to deal with it. It has no merit and is dismissed.

Ground 8 adds nothing to the appeal and should not have been included. A notice of appeal can be amended, with or without leave, under Order 7, Rule 24 of the Supreme Court Rules, depending on whether the date of appointment to settle the appeal book has lapsed. Ground No 8 is therefore dismissed.

The Court will therefore only deal with grounds 1, 2 and 3.

Overview of orders sought

The appellant is asking this court to uphold the appeal and quash the National Court’s decision of 17 October 2003. He also wants this court to make an award of damages in his favour. This raises the issue of what orders the Supreme Court can, and should, make if it upholds one or more of the grounds of an appeal. It raises the issue of whether the Supreme Court can make an award of damages or it only remits the matter to the National Court for retrial. If it can make an award of damages, should it nonetheless exercise its discretion not to, and remit the matter to the National Court? If, however, the matter is not remitted to the National Court and this court assesses damages, what should the amount be?
 
Summary of major issues

The major issues for determination therefore are:

•	did the trial judge err by misconceiving the nature of the plaintiff’s claim?

•	did the trial judge err by revisiting the issue of liability?

•	if one or more of those issues is decided in the appellant’s favour should this court assess damages or remit the matter to the National Court?

•	if this court assesses damages, what should they be?

DID THE TRIAL JUDGE ERR BY MISCONCEIVING THE NATURE OF THE PLAINTIFF’S CLAIM?

We have considered the grounds of appeal in the light of the submissions by counsel and we are of the opinion that the main reason the trial judge dismissed the plaintiff’s claim is that it did not disclose a cause of action. In reaching that conclusion his Honour characterised the claim as one based on Section 25 of the Wrongs (Miscellaneous Provisions) Act. His Honour regarded it as a statutory claim, which could only be for the benefit of the class of persons prescribed by Section 26.

Sections 25 and 26 are key provisions in Part IV (wrongful act or neglect causing death) of the Wrongs (Miscellaneous Provisions) Act. Part IV ensures that if a person by wrongful act, neglect or default causes the death of another person, the first person, the ‘wrongdoer’, has a continuing liability to the relatives of the second person (the deceased). These provisions preserve the cause of action that the deceased would have had against the wrongdoer, if the deceased had not died. Part IV is a standard piece of legislation found in many common law jurisdictions. It overcomes the position of the common law, which was that a person’s cause of action dies with the person. 

Section 25 imposes liability on the wrongdoer. Section 26 prescribes the relatives to whom the wrongdoer is liable. Other provisions of Part IV, which consists of Sections 24 to 33, regulate that liability. 

Section 25 (liability for death wrongfully caused, etc) states:

Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and notwithstanding that the death has been caused under such circumstances as amount in law to an offence.

Section 26 (actions under section 25) states:

(1)	An action referred to in Section 25 shall be for the benefit of the wife, husband, parent and child of the deceased person, and a person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the person deceased.

(2)	In the case of the death of a native within the meaning of the Interpretation Act 1975, an action referred to in Subsection (1) may be for the benefit of the persons who by custom were dependent on the deceased immediately before his death, in addition to the persons specified in that subsection.

In the present case the statement of claim refers twice to the Wrongs (Miscellaneous Provisions) Act. But it does not mention Sections 25 or 26 or any particular provision of the Act. It should, we consider, have mentioned Section 1, which is a key provision of Part I (State liability in tort).

Section 1 (general liability of the State in tort) states:

(1)	Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a)	in respect of torts committed by its servants and agents; and
(b)	in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c)	in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2)	Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3)	Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4)	Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(5)	An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) 	Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.

Statement of claim

We have carefully considered the appellant’s statement of claim in the National Court. We note that it is rather vague. We consider that because it made vague references to the Wrongs (Miscellaneous Provisions) Act, the statement of claim was poorly drafted. A well-drafted statement of claim will clearly spell out the facts (not the evidence) and the law by which the cause of action relied on is created. The statement of claim in this case fell short of that standard. We can appreciate why the trial judge wanted to recall the parties to clarify this issue. The transcript of proceedings reveals that neither party offered much assistance to his Honour, so his Honour was left to conclude that the cause of action being relied on was a statutory one, based on Section 25 of the Wrongs (Miscellaneous Provisions) Act. 

However when the statement of claim is read as a whole, even though it is poorly drafted, it is apparent that it was not, in fact, asserting such a cause of action. It was not making a statutory claim. It was a common law claim based on the tort of negligence. The plaintiff was making the claim on behalf of himself. He was not standing in the shoes of the deceased, as it were, which is what happens when a relative or an executor of the deceased’s estate makes a claim based on Section 25. The plaintiff was not asserting that he was entitled to damages to compensate him for the loss of support by the deceased. It was not a dependency claim. The plaintiff was, rather, conceptually saying:

•	the first defendant, the driver of the police vehicle, owed me, as a fellow road user, a duty of care;

•	the first defendant was drunk and drove negligently, crashing into my PMV, thus breaching his duty;

•	his breach of duty caused the death of my crewmember, which meant I then had to pay compensation to the deceased’s relatives and pay for funeral expenses etc;

•	the expenses I incurred were the ‘injuries’ I suffered and they were not too remotely connected to the first defendant’s conduct;

•	I was not responsible for my injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury; 

•	the second and third defendants are vicariously liable for the negligent conduct of the first defendant, so all three defendants are liable to me for damages.

(See discussion of the basic elements of the tort of negligence in Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)

Error of law

If the above explanation had been given to the trial judge his Honour might have not concluded that this was a Section 25 action. Of course, his Honour might still have concluded that it was, and that the only persons who can successfully claim damages where negligent conduct causes a death are those prescribed by Section 26. We are inclined to the view, however, that that is too narrow a construction of the Act. 

His Honour was led into error by the poor drafting of the statement of claim and the inadequate explanation given by both counsel when his Honour sought clarification of this issue.

We conclude, with respect, that the trial judge erred in law by misconceiving the nature of the plaintiff’s claim and concluding that it did not disclose a reasonable cause of action. 

Grounds 1 and 2 are upheld.

DID THE TRIAL JUDGE ERR BY REVISITING THE ISSUE OF LIABILITY?

This raises the issue of the task of a judge who conducts a trial on assessment of damages after default judgment has been entered in favour of a plaintiff. Is the judge expected or entitled to enquire into the issue of liability and be satisfied that the plaintiff has a reasonable cause of action? Or is the judge bound to make an assessment of damages, even if the judge considers that there is no cause of action? In the present case the trial judge took the former approach. 

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 but 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.)

In the present case therefore, on entry of default judgment, it was proven that:

•	the first defendant owed a duty of care to the plaintiff;

•	the first defendant breached that duty, ie he was negligent by driving the police vehicle into the back of the PMV driven by the plaintiff;

•	the crewmember on the PMV consequently died and the plaintiff consequently incurred funeral and compensation-related costs, which were directly attributable to the first defendant’s breach of duty;

•	the second and third defendants are vicariously liable for the first defendant’s negligent conduct; and therefore

•	the three defendants are liable to the plaintiff, having established a cause of action in negligence.

As indicated earlier the statement of claim in the present case was rather clumsily drafted. If a statement of claim is entirely bereft of clarity, so that it is unclear what the facts are or what the cause of action is, then the entry of default judgment would not cure those defects and an assessment of damages would be a futile exercise. However we do not think that this statement of claim was that bad. 

Role of trial judge in assessing damages following entry of default judgment

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.

In the present case a cursory examination of the statement of claim would have revealed that the facts and the cause of action were pleaded with sufficient clarity to establish liability. The trial judge should have accepted that liability had been established and proceeded with assessment of damages. Instead his Honour conducted a detailed inquiry into whether there was a reasonable cause of action disclosed by the pleadings, concluded that there was not, and dismissed the claim. By making such a detailed and unnecessary inquiry we consider, with respect, that his Honour denied the plaintiff the legitimate benefit of the default judgment and made an error of law.

We therefore uphold ground 3 of the notice of appeal. As we have already dismissed grounds 4 to 8, we will now consider whether this court should assess damages. 

SHOULD THIS COURT ASSESS DAMAGES OR REMIT THE MATTER TO THE NATIONAL COURT?

Powers of Supreme Court

There are several options available under Section 155 (the national judicial system) of the Constitution and Sections 6 (appeal to be by way of rehearing) and 16 (decision etc on appeal) of the Supreme Court Act.

Section 155(2) of the Constitution states:

The Supreme Court—

(a)	is the final court of appeal; and

(b)	has an inherent power to review all judicial acts of the National Court; and

(c)	has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

Section 155(4) of the Constitution states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

Section 6 of the Supreme Court Act states:

(1)	An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court—

(a)	to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b)	to draw inferences of fact.

(2)	For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

Section 16 of the Supreme Court Act states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a)	adjourn the hearing from time to time; or

(b)	affirm, reverse or modify the judgement; or

(c)	give such judgement as ought to have been given in the first instance; or

(d)	remit the case in whole or in part for further hearing; or

(e)	order a new trial. 

Options

We propose to set aside the trial judge’s order to dismiss the appellant’s claim for damages. As to the consequential orders the following are the most feasible options:

•	remit the matter to the trial judge for an assessment of damages; 

•	order a new trial by another judge on assessment of damages; 

•	 make an assessment of damages based on the evidence tendered and submissions made in the National Court.

Discretion

We will not remit the matter to the trial judge as his Honour has already expressed the strong view that there were serious gaps in the plaintiff’s case. We will also not remit the matter to another judge. We believe we are in a position, having considered all the material before the National Court, to ourselves make an assessment of damages. The evidentiary material is not complex and the amount of the claim is not large, so it makes sense to make an assessment immediately and avoid a further multiplicity of proceedings. 

We therefore exercise the Supreme Court’s discretion to assess damages.

IF THIS COURT ASSESSES DAMAGES, WHAT SHOULD THEY BE?

Principles

In assessing damages we will apply the following principles:

•	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.) 

•	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 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.)

(See generally Michael Buna v The State (2004) N2696, National Court, Cannings J.)

The present case

We consider that there is sufficient evidence to prove that the appellant was placed in a difficult situation. Rightly or wrongly, he was expected by the relatives of the deceased to make an effort to compensate them for the death of the deceased. 

He has proved on the balance of probabilities that that situation existed and that he incurred some expenses. He was subject to cross-examination by the defendants’ lawyer and his story was not sufficiently discredited to make it unbelievable. There are problems in upholding his entire claim because of a shortage of corroboration. We are mindful of the principle that corroboration of such claims by an independent source is normally required. There is a statutory declaration annexed to the appellant’s affidavit of 31 July 2003, filed in the National Court, which purports to be by a representative of the relatives of the deceased, confirming that they received K12,000.00 cash and ten pigs valued at K1,000.00 each. It does not provide complete corroboration, however.

We consider that the quality of the evidence is sufficiently credible to justify an award of damages being made. But only just. What saves the appellant from being awarded nothing is that we accept the basic credulity of his evidence. We do not consider it is so outlandish or suspicious as to defeat the claim completely. We apply the principle developed by Injia J, as he then was, in Paraia’s case: the fact that damages cannot be assessed with certainty does not relieve a wrongdoer of the necessity of paying damages, based on a reasonable estimate.

Special damages

As to the various amounts of special damages claimed, we find as follows:

•	The amount claimed for cash compensation (K12,000.00) will be discounted by 50% as there are no receipts or records. We will allow K6,000.00.

•	The amount claimed for the pigs (K10,000.00) will be discounted by 50% for the same reasons. We allow K5,000.00.

•	The amount claimed for coffin-related expenditure (K500.00) will be upheld, as the amount seems reasonable in the circumstances. We allow K500.00.

•	The amount claimed for vehicle hire for seven days (K1,400.00) will be upheld, as the amount seems reasonable in the circumstances. We allow K1,400.00.

•	The amount claimed for fuel during the mourning period (K500.00) will be upheld, as the amount seems reasonable in the circumstances. We allow K500.00.

•	The amount claimed for accommodation, food and other expenses (K5,000.00) will be discounted by 50% as there are no receipts and records. We allow K2,500.00.

We therefore award special damages of K15,900.00. The plaintiff did not pursue any other heads of damage, so that is the total award.

INTEREST

Law

The plaintiff claimed interest in his statement of claim and therefore it is open to this court to make an order for payment of interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. 

Section 1 states:

(1)	Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2)	Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

Discretion

As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the court: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run. 

We exercise that discretion in the following way. 

1	A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given. 

2	As this is a claim against the State, the maximum rate that can be awarded is, by virtue of Section 1(2), 8%. In view of current economic conditions in the country, 8% is, we think, the proper rate of interest. 

3	Interest should be payable on the whole of the sum of damages for which judgment is given. 

4	The appropriate period is the whole of the period between the date on which the cause of action arose and the date of this judgment. We fix the date on which the cause of action arose as the date by which the appellant incurred the expenses, which we say is 1 January 2001. The date of this judgment is 1 July 2005.

Calculation

We calculate the amount of interest by applying the following formula:

•	D x I x N = A

Where:

•	D is the total amount of damages awarded;

•	I is the rate of interest per annum;

•	N is the number of years from the date on which the cause of action arose to the date of judgment;

•	A is the amount of interest.

We apply the formula as follows:

K15,900.00 x 0.08 x 4.5 = K5,724.00.

We will therefore order that there be included in the sum for which judgment is given, interest of K5,724.00.

COSTS

The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule. 

There was no appearance by any of the defendants at the hearing of this appeal, so costs shall be paid on a solicitor-client basis.

REMARKS

As we just commented, this appeal was heard in the absence of the respondents’ lawyer, the Solicitor-General. Before hearing the appeal we were satisfied that the appellant’s lawyer had given sufficient notice in writing to the office of the Solicitor-General. 

It gives a poor impression of that office for any appeal in the Supreme Court to which the State is a party to go ahead without representation. This appeal was listed for hearing a number of weeks before it was heard. We appreciate that the office of Solicitor-General is experiencing resource constraints. Perhaps a decision was made to give this appeal a low priority in view of the relatively small amount of money involved. Whatever the case it is reasonable to expect that there will be some communication with the court to advise what the State’s position is or that an apology will be offered to explain the non-appearance of a State lawyer. 

Regrettably these basic requirements of professional courtesy appear to have been breached. 

JUDGMENT

The Supreme Court upholds the appeal, quashes the judgment of the National Court and directs entry of judgment in the following terms:

•	damages, payable by the defendants to the plaintiff, in the sum of K15,900.00; plus

•	interest of K5,724.00;

•	being a total judgment sum of K21,624.00; plus 

•	costs to be paid by the defendants to the plaintiff on a solicitor-client basis, to be taxed if not agreed. 

Judgment accordingly.
_______________________________________________________________________
Lawyers for the appellant		: 	Powes Parkop Lawyers
Lawyer for the respondents		: 	Solicitor-General