Desmond Huaimbukie, Marcus Huaimbukie, Stanis Wafi Mairangian, Patrick Saihira, Hubert Makes, Malaki Yenu, Elphin Yenu and Saihengui Harinduo v James Baugen as Station Commander of Yangoru Rural Police Station and The Independent State of Papua New Guinea (2004) N2589

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 16 July 2004
• Citation: (2004) N2589
• Docket Number: WS No 58 of 2002
• Year: 2004

Full Title: WS No 58 of 2002; Desmond Huaimbukie, Marcus Huaimbukie, Stanis Wafi Mairangian, Patrick Saihira, Hubert Makes, Malaki Yenu, Elphin Yenu and Saihengui Harinduo v James Baugen as Station Commander of Yangoru Rural Police Station and The Independent State of Papua New Guinea (2004) N2589

National Court: Kandakasi J

Judgment Delivered: 16 July 2004

1 PRACTICE AND PROCEDURE—Pleadings—Plaintiff failing to properly plead his loss and damages—Defence failing to take appropriate objection—Effect of—Court can award damages up to amounts conceded by the defence.

2 LAW OF TORTS—Unlawful police raid—Destruction to houses and other properties—Whether action within the course of duty and furthering interest of the State—Whether State vicariously liable for unlawful acts of police—No arguments raised against liability—Consequence of—Award of damages not contested.

3 DAMAGES—Assessment of—Only matters properly pleaded and proven can be allowed—Defence not taking issue on pleadings, evidence led at trial and accept damages up to a certain level—Consequence of—Court can award damages not contested.

4 Coecon Ltd v The National Fisheries Authority of PNG [2002] PNGLR 506, PNGBC v Jeff Tole (2002) SC694, Ome Ome Forests Ltd v Ray Cheong (2002) N2289, Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102, John Yama v The Independent State of Papua New Guinea (2002) N2198, Kolaip Palapi v Independent State of Papua New Guinea (2001) N2274, The Independent State of Papua New Guinea v Kofowei [1987] PNGLR 5, Abel Tomba v The Independent State of Papua New Guinea (1997) SC518, Application by Kunzi Waso [1996] PNGLR 218, Motor Vehicles Insurance (PNG) Trust v John Etape [1995] PNGLR 214 (Edit: Unclear whether MVIT v John Etape [1994] PNGLR 596 or MVIT v Salio Tabanto [1995] PNGLR 214 is the correct reference), MVIT v Pupune [1993] PNGLR 370, Repas Waima v MVIT [1992] PNGLR 254, Collins v MVIT [1990] PNGLR 580, Dawa Yomi v The Independent State of Papua New Guinea (1990) N823, Woma Paul v Anton Kare [1988] PNGLR 276, Helen Bia Sam v Paul Haurom [1998] PNGLR 346, Tony Wemin v The Independent State of Papua New Guinea (2001) N2134, John Tuink Salamon v The Independent State of Papua New Guinea [1994] PNGLR 265, Toglai Apa v The Independent State of Papua New Guinea [1995] PNGLR 43, David Haluya v Independent State of Papua New Guinea (2001) N2109 referred to

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Kandakasi J: The Plaintiffs are claiming damages, interest and costs arising out of a police raid resulting in destruction to property, assault and battery, unlawful detention and breaches of their Constitutional rights. The acts were allegedly committed by members of the police force based at Yangoru Rural Police Station in East Sepik Province on 12 December 2001.

Liability

An entry of default judgment against the Defendants on 7 August 2002, resolved the liability in favour of the Plaintiffs. The default judgment was in default of the Defendants Notice of Intention to Defend and Defence. Hence, the matter came before me for an assessment of damages on 12 November 2003. At that time, I was taking care of three different lists, two civil trial lists and the Motions Court due to the unavailability of the other judges. This meant I could not hear and quickly determine the cases then listed before. I therefore only heard and reserved judgments to a date when I am ready. I have delivered some of the judgments in that category already. Today I am ready with the decision in this matter.

The legal principles governing the assessment of damages following the entry of default judgment is clear. I summarised them in my judgment in Coecon Ltd v The National Fisheries Authority of PNG [2002] PNGLR 506, in these terms:

"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 led evidence and recover such damages as may be pleaded and asked for in his statement of claim."

In PNGBC v Jeff Tole (2002) SC694, the Supreme Court of which I was a member referred to this summary (per Sheehan J and Kandakasi J) with approval.

It is clear therefore that, pleadings play a very significant role in first saying what evidence the parties can lead and secondly, the kind of damages a party can claim and be granted. It is also clear that, where the parties chose by their conduct to go outside their pleadings, the Court can award damages not claimed in the pleadings but established by the evidence.

The question then is, what damages have the plaintiffs pleaded for and or established in their evidence? This requires an examination of what is in the pleadings and then the evidence before the Court. Hence, I examine the pleadings first.

Pleadings

In the first 6 paragraphs of their statement of claim, the plaintiffs describe themselves and the other parties. They plead that the first Defendant was the commander of the Yangoru Rural Police Station. He was an employee of the State, because of which the State is vicariously liable for the wrongful acts of the First Defendant. Without specifying who they were, the plaintiffs plead that certain police officers under the command and control of the First Defendant at the Yangoru Rural Police Station, entered their village, Boimsara and carried out a raid. During the raid, the unnamed police officers rounded them up with other villagers and took them into police custody, and subjected them to assaults, kicks, punches and beatings using fists, boots, coffee sticks and gun butts and destroyed, looted and damaged their properties. All these were done without any lawful authority, justification or excuse. Consequently, they plead that they suffered losses and damages.

In the next part of the pleadings, the plaintiffs list the personal properties namely, clothes and things of value with estimated values of only some of them that they lost to the police officers. They also list the kind of personal injuries they received and the manner in which those injuries were inflicted against them. They do not plead any long–term disability of any kind.

In the final part, being the prayer for relief, they claim damages, interest at 8% and costs.

The Evidence and the Relevant Facts

By agreement of the parties, the trial was by affidavit evidence followed by written submissions. The evidence consists of affidavit by each of the plaintiffs without any other supporting witnesses' evidence. These affidavits have been deposed to on the 7th and filed on 16 May 2003. The Defendants have not filed any affidavit in response. They have also not cross–examined any of the plaintiff's witnesses.

Each of the plaintiff's evidence is in identical terms. They start with identifying themselves as the Plaintiffs in the proceedings and that liability has been resolved in their favour because of the default judgment. They then say that, on 12 December 2000, unnamed Policemen from the Yangoru Local Police Station in East Sepik Province, which was under the command of the First Defendant, entered their village without a search warrant. Thereafter, they say the unnamed police officers rounded up a number of the villagers, which included them. They were then, subjected to assaults, kicks and punches. In the process, they were beaten very badly...