Luke Deukari v Danny Kuglam and The Independent State of Papua New Guinea (2006) N3087

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 29 September 2006
• Court: National Court
• Citation: (2006) N3087
• Docket Number: WS No 615 of 1994
• Year: 2006
• Judgement Number: N3087

Full Title: WS No 615 of 1994; Luke Deukari v Danny Kuglam and The Independent State of Papua New Guinea (2006) N3087

National Court: Cannings J

Judgment Delivered: 29 September 2006

N3087

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 615 OF 1994

LUKE DEUKARI

Plaintiff

V

DANNY KUGLAM

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Buka: Cannings J

2006: 18 August, 29 September

JUDGMENT

DISCIPLINED Forces – Defence Force – trespass to property – burning down of houses in security operation – Bougainville Crisis – liability already established by entry of default judgment – conduct of Defence Force soldiers – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – whether actions of soldiers committed within the scope of Defence Force functions and responsibilities – whether exemplary damages payable.

DAMAGES – damage to property – general damages – special damages – exemplary damages – whether appropriate to award exemplary damages – plaintiff awarded damages, plus interest and costs.

A Defence Force detachment was engaged in a security operation in the Bougainville Crisis. There was a shootout between the detachment and members of the BRA. Shortly afterwards members of the Defence Force detachment blew up two of the plaintiff’s houses, destroying them. The plaintiff sued the head of the Defence Force detachment and the State for unlawful destruction of property. Liability was established by entry of default judgment and a trial was conducted on assessment of damages.

Held:

(1) The default judgment resolved all questions of liability in respect of the matters pleaded in the statement of claim.

(2) Therefore members of the Defence Force committed the tort of trespass to property and the State is vicariously liable for their tortious acts or omissions committed within the scope of their employment and functions.

(3) The State is liable to pay special damages of K97,131.80, general damages of K50,000.00 but not exemplary damages; being a total of K147,131.80.

(4) The plaintiff was awarded interest of K158,902.34, being a total judgment sum of K306,034.14; plus costs.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Albert Baine v The State (1995) N1335

Andale More and Another v Henry Tokam and The State (1997) N1641

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 and The State (2004) N2589

Jerry Goria v Sergeant Jeffery Simera and Others (2001) N2066

John Yama v The State (2002) N2198

Jonathan Mangope Paraia v The State (1995) N1343

Kinsim Business Group v Joseph Hompwafi and Others (1997) N1634

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364

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

Phillip Kunnga v The State (2005) N2864

Steven Kirino v The State [1998] PNGLR 351

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 and Others (2005) SC790

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages following the entry of default judgment in favour of the plaintiff.

Counsel

T R Tamusio, for the plaintiff

T P Potoura, for the defendants

INTRODUCTION

1. CANNINGS J: This is a case about a Defence Force operation during the Bougainville Crisis that resulted in two of the plaintiff’s houses being blown up.

2. The first defendant, Danny Kuglam, was the troop commander of the Defence Force detachment, holding the rank of Corporal. The second defendant is the State. Both defendants have already been found liable for what happened by entry of default judgment against them. The case was therefore set down for trial to determine what amount of damages, if any, should be paid to the plaintiff.

BACKGROUND

The incident

3. On 19 March 1993, there was a Defence Force operation near Inong village in the Siwai District, South Bougainville. This was during the Bougainville Crisis. There was a shootout between the detachment and members of the BRA. The plaintiff, Luke Deukari, says that two of his houses were blown up, without lawful excuse, by the detachment, whose commander was the first defendant, Danny Kuglam. He says the Defence Force blew up his houses as they thought he was a BRA sympathiser. The second defendant, the State, should be held vicariously liable for the intentional conduct of the Defence Force detachment. He should be awarded damages.

Statement of claim

4. On 12 August 1994 a writ of summons was filed on behalf of the plaintiff. Then, on 22 November 1994, an amended writ of summons was filed.

The plaintiff seeks the following remedies:

· special damages of K97,131.80;

· general damages;

· exemplary damages;

· interest.

5. On 23 September 2005, Lenalia J ordered default judgment against the defendants.

PLAINTIFF’S EVIDENCE

6. Mr Tamusio, for the plaintiff, tendered four affidavits by consent.

The affidavits

7. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS

TENDERED BY PLAINTIFF

Exhibit Description Content

A Luke Deukari, villager, Gives an account of the incident and itemises his
losses.
08.09.94

B Effie Deukari, Gives an account of the incident and provides a list
plaintiff’s of items lost in the fire.
daughter,
08.09.04

C Nick Peniai, Supports the plaintiff’s affidavit and says what the
villager, plaintiff is saying is true.
16.10.03

D Luke Deukari, Annexes photos of the plaintiff’s houses destroyed
villager, by the PNGDF soldiers.
27.10.05

DEFENDANT’S EVIDENCE

8. Mr Potoura, for the defendants, tendered one affidavit by consent, as shown in table 2.

TABLE 2: SUMMARY OF AFFIDAVITS

TENDERED BY DEFENDANTS

Exhibit Description Content

D1 Danny Kuglam, Denies burning down the plaintiff’s houses – when he
first defendant, went there the houses were already burning. It must have
been the BRA or the Resistance.
14.11.94

ROLE OF TRIAL JUDGE WHEN MAKING ASSESSMENT OF DAMAGES FOLLOWING ENTRY OF DEFAULT JUDGMENT

9. This issue was recently addressed by the Supreme Court in William Mel v Coleman Pakalia and Others (2005) SC790, Los J, Jalina J, Cannings J. The court endorsed the principles expressed by Kandakasi J in the National Court in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182 and by the Supreme Court in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J. The trial judge’s role is:

· to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; and

· if the facts and cause of action are reasonably clear, liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;

· 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;

· the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;

· 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.

10. Other principles to apply when the court is assessing damages can be summarised as follows:

· 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 AJ.)

· 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...