Nelson Pawa v Linus Yumbun, Officer in Charge, Porgera Police Station and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3784

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 06 November 2009
• Court: National Court
• Citation: (2009) N3784
• Docket Number: WS NO 830 OF 1999
• Year: 2009
• Judgement Number: N3784

Full Title: WS NO 830 OF 1999; Nelson Pawa v Linus Yumbun, Officer in Charge, Porgera Police Station and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3784

National Court: Makail J

Judgment Delivered: 6 November 2009

N3784

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 830 OF 1999

BETWEEN

NELSON PAWA

Plaintiff

AND

LINUS YUMBUN,

OFFICER IN CHARGE, PORGERA POLICE STATION

First Defendant

AND

JOHN WAKON,

COMMISSIONER OF POLICE

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Mount Hagen: Makail J,

2009: 24th September & 6th November

DAMAGES - Assessment of damages - Negligence actions by members of police force - Damage to PMV bus - Cost of repairs - Loss of profit - Damages for breaches of constitutional rights - Exemplary damages - Special damages - Whether damages established on balance of probabilities - Various awards made.

Cases cited:

James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486

William Patitts -v- The State (2006) N3088

Abel Tomba -v- The State (1997) SC 518

Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214

Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247

Counsel:

Mr D Gonol, for Plaintiff

Ms J Y Doa, for Defendants

JUDGMENT

06th November, 2009

1. MAKAIL J: The plaintiff sues the defendants for damages suffered from damage done to his PMV bus, a Mini bus bearing registration no P-5854 (“PMV bus”) by a group of unidentified policemen under the command and control of the first defendant when they entered his premises located at Porgera town and without good reason willfully damaged the PMV bus and removed cash of K300.00 on 23rd October 1998.

2. Default judgment was entered against the defendants on 18th October 2000, hence liability is no longer in issue and the matter comes before me for assessment of damages based on the negligent actions of the members of the police force under the command and control of the first defendant. The plaintiff claims that he spent K7,473.40 for cost of repairs and had lost profit at an average of K180.00 per day or K2,160.00 for 12 days as a result of the damage done to his PMV bus. In seeking to establish his damages, he relies on the following affidavits and documentary evidence:

1. His affidavit sworn on 10th April 2001 and filed on 8th May 2001 (Exhibit “P1”);

2. His supplementary affidavit sworn on 25th September 2006 and filed on 025th September 2006 (Exhibit “P2”);

3. Registration Certificate of PMV bus issued in 9th May 1998 (Exhibit “P3”);

4. Certificate of Insurance for period 9th May 1998 to 9th May 1999 (Exhibit “P4”);

5. PMV licence no 59886 dated 11th May 1998 (Exhibit “P5”);

6. Certificate of Roadworthiness and Receipts of payments from Western Highlands Provincial Government (Exhibit “P6”);

7. Court Order of Wabag District Court of 23rd June 1999 (Exhibit “P7”);

8. Receipt of payment of K5,000.00 from Jay Tee Motors Limited dated 24th January 1999 (Exhibit “P8”); and

9. Receipt of payment of K500.00 (Exhibit “P9”).

3. The plaintiff also gave oral evidence in respect to his claim for special damages and was cross examined by defence counsel. The defendants on the other hand offered no evidence to refute the evidence of the plaintiff.

4. From the undisputed evidence of the plaintiff, I find that on 23rd October 1998, a group of unidentified policemen led by the first defendant entered the plaintiff’s premises located at Porgera town and willfully damaged his PMV bus and removed cash of K300.00. I make these findings of fact notwithstanding the defence counsel’s submissions that there is no evidence directly connecting the policemen to the missing or stolen cash of K300.00 from the glove box of the plaintiff’s PMV bus. This is because, there is no evidence from the defendants either denying or refuting the plaintiff’s evidence that the members of the police force stole the K300.00 in the course of damaging his PMV bus. I will return to discuss this aspect of the claim later on but for now, the primary issue therefore is, has the plaintiff established his damages on the balance of probabilities?

5. Although defence counsel attempted to draw the Court’s attention during cross examination of the plaintiff to the fact that the same complaint against the defendants was brought before the Wabag District Court and struck out, counsel did not address that aspect in her final submissions to the Court. Nonetheless, it is pretty obvious that it was a waste of time for defence counsel to dwell on this issue that is obviously a question of law, rather than of fact to defend the negligent actions of the defendants. For it is not denied by the plaintiff that the Wabag District Court had struck out the plaintiff’s complaint in respect of the same claim for the damage to his PMV bus on 28th June 1999.

6. At law, the fact that the complaint was struck out did not bar the plaintiff from commencing proceeding for the same cause of action so long as he is still within the 6 years time limitation under the Frauds and Limitation Act, 1988. For this reason, I find that the plaintiff is entitled to commence the same action against the defendants, hence the action is not res judicata. It is properly before the Court and the Court is entitled to determine it.

7. I now turn first to the claim for cost of repairs. For this claim, I am satisfied that there is overwhelming evidence in the Registration Certificate of PMV bus (Exhibit “P3”), Certificate of Insurance (Exhibit “P4”), PMV licence no 59886 (Exhibit “P5”), Certificate of Roadworthiness and Receipts of payments from Western Highlands Provincial Government (Exhibit “P6”) that the plaintiff is the registered owner of the PMV bus. Thus, he is entitled to claim cost of repairs arising from the damage done to the PMV bus.

8. I am also satisfied that the plaintiff has spent money to have the PMV bus repaired in order to have it back on the road. He has incurred some costs but the question is; how much is the cost of repairs? As noted above, he claims K7,473.40 under this head of damages. In his evidence, he relies on the quotation provided by Jay Tee Motors Limited dated 05th December 1998 marked as annexure “A” to his affidavit (Exhibit “P1”) to claim K7,028.13. But I am not satisfied that he has incurred either K7,473.40 or K7,028.13. There is no evidence in the form of a receipt of payment for either sum of money. On the other hand, I am satisfied that he has incurred cost of K5,000.00. This is because there is evidence of a receipt of payment of K5,000.00 from Jay Tee Motors Limited dated 24th January 1999 (Exhibit “P8”).

9. I am prepared to award this amount to the plaintiff as cost of repairs and not K7,473.40 or K7,028.13 because I do not accept his oral evidence that he was not given receipts of payments by the workshop for the balance of either K2,473.40 or K2,028.13. If he was not given receipts of all the part payments as cost of repairs at the time of payment, he should have either requested for copies of the originals from the a staff of the workshop or called the staff to give evidence to support his claim of K7,473.40 or K7,028.13.

10. For these reasons, I will award K5,000.00 as cost of repairs.

11. Turning to his claim for loss of profit, as noted above, he claims K2,160.00 for 12 days at K180.00 per day. The difficulty I have with this claim is that whilst the plaintiff says in his affidavit (Exhibit “P1”) that he lost this amount when the PMV bus was in the workshop for repairs for 2 weeks, there is no independent evidence to corroborate his claim that he earned K2,160.00 for 12 days. I would have expected the plaintiff to produce copies of his bank statement and, or statement of profit and loss or better still, copies of the receipts of payments of expenses incurred and income made for the PMV operation to enable the Court to determine whether or not he made any profit prior to the damage of the PMV bus.

12. I expressed reservation over claims for loss of profit arising from PMV operations in James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486 where I said:

“33. First, the cases of Graham Mappa (supra), Kerekal Farming & Trading Pty Ltd (supra), Paulus Kei (supra) and Tony Kulam Kapil (supra) show that it is not sufficient to rely on Affidavit or oral evidence of Plaintiffs to prove claims for loss of profit. There must be some independent evidence like financial statement(s) from an accountant to support the claim for loss of profit. If the accountant’s evidence and financial statement(s) are to be relied upon, then they must be based on primary documents like, bank statements, receipts and invoices, contracts and other documents which would show assets acquired, income due and liabilities incurred by the business.

34. The other school of thought is where, if there is no evidence to the contrary or evidence disproving or contradicting the evidence in support of the claim for loss of profit, the Court merely relies on the Affidavit or oral evidence of Plaintiffs to assess an appropriate amount for loss of profit. This means that, whatever amount the Plaintiffs state in their Affidavits or oral evidence unless disproved or contradicted by other evidence may be accepted and relied upon by the Court to calculate the amount of damages. The...