Kil v Kupo [2008] PGSC 38; SC957 (7 October 2008)

SC957

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 139 OF 2005

BETWEEN:

TAKAPO KIL on behalf of herself & DANAVEN KIL
Appellant

AND:

JOSEPH KUPO
COMMISSIONER OF POLICE
First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Salika, Davani & Gabi JJ
2007 : 27th November
2008: 7th October

APPEALS – Appeal to Supreme Court – dependency claim – whether ex gratia payment is sufficient

Facts

The appellant (then the plaintiff) filed proceedings in the National Court seeking damages from the respondents (then defendants) for alleged negligence by them following the death of her husband during a student unrest at the University of Papua New Guinea. Whilst the proceedings were on foot, the second defendant paid the plaintiff and her relatives the sum of K800,000.00 in ‘ex gratia’ payment. Upon hearing the matter, the trial judge dismissed the entire proceedings finding that the plaintiff has already been paid a substantial amount by the State, four times more than what the plaintiff would have been legally entitled to.

Issue

Did the trial judge err when he dismissed the proceedings?

Held

1. The monies paid by the State to the plaintiff and the deceased’s relatives, although without any admission of liability, is in full satisfaction of any claims the plaintiff or the deceased’s relatives may have against the State.
   
2. The State should not pay twice for the wrongful actions of its servants and agents.
   

Counsel

W. Thomas, for the appellant
J. Tindiwi, for the first and second respondents

DECISION

7 October, 2008

1. BY THE COURT: The appellant appeals against a decision of the National Court handed down on 21st November, 2005 at Waigani in proceedings WS 228 of 2002 where the appellant was named as the plaintiff and the first and second respondents as defendants. By that order, the trial judge dismissed the entire proceedings.
   

Background of appeal

2. The appellant relies on her Notice of Appeal filed on 19th December, 2005 which appeals against the whole of the National Court’s decision of 21st November, 2005.
   
3. The proceedings that came before the trial judge was a dependency claim for assessment of damages, default judgment having already been entered. In the Writ of Summons and Statement of Claim, the plaintiff claims damages for the death of her husband, then a student at the University of Papua New Guinea, who was allegedly shot by a policeman on 26th June, 2001 during a protest march. At the time of his death, the plaintiff was aged 19 and already had a child, then aged 3 years, from the deceased.
   
4. In the National Court proceedings, the plaintiff claimed the sum of K800,000.00 in general damages, K8,000.00 in special damages, interest and costs, dependency claim under the Wrongs (Miscellaneous) Provisions Act.
   

The appeal

5. The trial judge noted from the evidence before him that the State had made an ex-gratia payment of K300,000.00 to the deceased’s biological father. Only K5,000.00 was received by the widow. The Trial Court held that the ex-gratia payment of K300,000.00 was already a substantial amount of money, that it was four times more than what the dependants would have been lawfully entitled to and was enough to cover all the heads of damages claimed. His Honour also went one step further by calculating the dependency claim if it were to be paid and noted that if it were not for the K300,000.00 ex-gratia payment, that the plaintiff would have received only K67,600.00.
   
6. His Honour held that what the plaintiff is doing is that she is claiming an unjust enrichment, in that having already been paid by the State, she cannot now claim an additional payment in that "...no sense of justice will be served by the additional payment" (pg. 3 of Reasons for Decision). He quoted the general principle that "a wrong doer shall not pay twice for his wrong also comes to mind" (pg. 3 of Reasons for Decision).
   
7. The evidence in relation to payment of K300,000.00 is deposed to in the affidavit of one Timothy Kil sworn on 19th August, 2005. He deposes that K300,000.00 was paid as compensation monies to all relatives, wantoks and friends of the deceased.
   
8. The sum of K300,000.00 was not sanctioned by the Court, although the opportunity was there. We note the plaintiff’s then lawyers filed a Notice of Motion seeking such orders but which Motion was not moved because the K300,000.00 was already distributed and received by the deceased’s relatives.
   
9. We have also sighted the very lengthy submissions filed by the plaintiff’s lawyers seeking payment of K800,000.00 in general damages and additional monies for special damages and costs. We note particularly and remind ourselves that the position at law is that the State should not pay twice for the wrongful actions of its servants and agents.
   
10. In our view, monies have been paid by the State. If it was not properly distributed, that is not a matter for this Court to deliberate on. It is a human frailty and weakness, very common in Papua New Guinea, where the widow, who should be benefiting and who should be in receipt of the total proceeds, is pushed aside by the deceased’s relatives, more particularly his male relatives and the money used by them.
    
11. We do not accept the appellant’s lawyers’ submissions that because the State has not filed a Defence pleading ‘unjust enrichment’ or any other known Defence, that the Court should not have dismissed the entire claim. We accept that the good evidence before the trial Court at that time was that the State had paid the deceased’s relatives a sum of K300,000.00. That need not have been pleaded in the Defence. In any event, default judgment had already been entered. A Defence of ‘unjust enrichment’ would not have made any difference or altered the stance taken by the trial judge.
    
12. We find that the monies paid by the State to the deceased’s relatives, although without any admission of liability, is in our view, in full satisfaction of any claims the widow or the deceased’s relatives may have against the State. A proper calculation of the claim shows the plaintiff would only have received far less than what was paid. The appellant cannot make any other claims over and above what has already been paid. If the appellant feels she should pursue the matter further, then we do not see why she cannot seek payment of her rightful share of the K300,000.00 already paid, from the deceased’s relatives who received these monies.
    
13. We find this appeal has no merits and dismiss it.
    
14. The appellant shall pay all respondents’ costs of the appeal.
    

Warner Shand Lawyers: Lawyers for the Appellant
Office of the Solicitor General: Lawyer for all the Respondents