Alois Kawa, for Himself, & for & on behalf of Dorothy Kawa & as next Friend of Rosalie Kawa, Nigel Kawa, Annette Kawa, Daphne Kawa, Ghai Kawa & Joe Kawa, all Infants v Hans Yob, for himself & on behalf of Gum Villagers, Madang Province and Bunag Kiup and Commissioner of Police and The Independent State of Papua New Guinea (2010) N3923

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 February 2010
• Court: National Court
• Citation: (2010) N3923
• Docket Number: WS NO 357 OF 2007
• Year: 2010
• Judgement Number: N3923

Full Title: WS NO 357 OF 2007; Alois Kawa, for Himself, & for & on behalf of Dorothy Kawa & as next Friend of Rosalie Kawa, Nigel Kawa, Annette Kawa, Daphne Kawa, Ghai Kawa & Joe Kawa, all Infants v Hans Yob, for himself & on behalf of Gum Villagers, Madang Province and Bunag Kiup and Commissioner of Police and The Independent State of Papua New Guinea (2010) N3923

National Court: Cannings J

Judgment Delivered: 19 February 2010

N3923

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 357 OF 2007

BETWEEN:

ALOIS KAWA, FOR HIMSELF, & FOR & ON BEHALF OF DOROTHY KAWA & AS NEXT FRIEND OF ROSALIE KAWA, NIGEL KAWA, ANNETTE KAWA, DAPHNE KAWA, GHAI KAWA & JOE KAWA, ALL INFANTS

Plaintiff

AND

HANS YOB, FOR HIMSELF & ON BEHALF OF GUM VILLAGERS, MADANG PROVINCE

First Defendant

AND:

BUNAG KIUP

Second Defendant

AND:

COMMISSIONER OF POLICE

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Madang: Cannings J

2009: 24 July, 29 September,

16 October,

2010: 19 February

JUDGMENT

DAMAGES – assessment of damages – negligence – negligent failure by Police to protect plaintiff and his premises from attack and destruction of properties by village residents – failure to enforce court order prohibiting villagers from entering premises

A group of villagers raided the plaintiff’s premises on which he had a family home and had established a number of businesses, including a guesthouse, restaurant, bar and canteen, medical store and mechanical workshop. The villagers burned, destroyed and/or stole properties, and as a result the plaintiff’s businesses ceased to function. He had 16 months earlier obtained a National Court order restraining the villagers from entering his premises and threatening or intimidating him and delivered the order to the local police, and asked the police to serve it on the villagers. The police failed to enforce the order. The plaintiff sued the villagers (the first and second defendants) and the Commissioner of Police and the State (the third and fourth defendants). He obtained default judgment against the Commissioner and the State, the principal cause of action being negligence on the part of the police in failing to enforce the National Court order. The proceedings against the villagers have not been pursued. A trial was held to assess damages against the Commissioner and the State.

Held:

(1) The plaintiff claimed seven categories of damages, totalling K19,438,600.00. He was awarded a total sum of K441,000.00.

(2) In addition, interest of K144,648.00 is payable, making the total judgment K585,648.00.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Coecon v National Fisheries Authority (2002) N2182

Dia Kopio v Employment Authority of Enga and Others (1999) N1865

Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06

Graham Mappa v ELCOM (1992) N1093

James Liwa v Markis Vanimo (2008) N3486

Jonathan Mangope Paraia v The State (1995) N1343

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

Marcus Mong v John Selou (2002) N2208

Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07

Nelson Pawa v Linus Yumbun (2009) N3784

Peter Wanis v Fred Sikiot and The State (1995) N1350

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages.

Counsel

S Toggo, for the plaintiff

G Odu, for the third and fourth defendants

19 February, 2010

1. CANNINGS J: This is an assessment of damages against the Commissioner of Police and the State (the third and fourth defendants). They have been found liable for the negligence of the Madang Police in not protecting the plaintiff, Dr Alois Kawa, against a violent raid staged by residents of Gum village on his premises at Gum on the outskirts of Madang town.

2. On 1 January 2006 the villagers (the first and second defendants) raided Dr Kawa’s premises, known as Portion 505, on which, he claims, he had a family home and conducted a number of businesses, including a guesthouse, restaurant, bar and canteen, medical store and mechanical workshop. They burned and destroyed the buildings and stole things from within them, as a result of which Dr Kawa’s businesses have ceased to function. They assaulted and injured Dr Kawa. The events of the day have caused him physical and psychological trauma and led to estrangement from his wife and children.

3. Dr Kawa had since 2002 been in conflict with the villagers and in August 2004 obtained a National Court order restraining them from entering his premises and threatening or intimidating him. He delivered the order to the local police immediately after it was made and asked the police to serve it on the villagers. The police, however, failed to enforce the order.

4. Dr Kawa sued the villagers and the Commissioner of Police and the State. On 14 May 2008 he obtained default judgment against the Commissioner and the State. The principal cause of action is negligence on the part of the police in failing to enforce the National Court order. The case against the villagers has not been pursued. A trial was held to assess damages against the Commissioner and the State. He seeks seven categories of damages, totalling about K19.5 million.

1 LOSS OF PROPERTY

5. Seven sub-categories of damages are claimed:

(a) guesthouse – claimed to consist of 12 rooms, fully tenanted at the time of the raid – damages sought: K2 million;

(b) residential home – claimed to be a permanent high-covenant house, a ‘magnificent, huge and beautiful home’ – damages sought: K500,000.00;

(c) restaurant, guest bar and canteen – claimed to be all in the same building – damages sought (including lost stock): K1 million;

(d) medical store – claimed to contain expensive medicines and accessories for use in clinics and hospitals that were utterly destroyed in the inferno – damages sought: K3 million;

(e) plaintiff’s personal effects – claimed to consist of clothes, utensil and other personal things that were destroyed when the residential home was destroyed – damages sought: K500,000.00;

(f) workshop – claimed to hold equipment used to fix motor vehicles, tyres and also carpentry tools, equipment and accessories – damages sought: K2 million;

(g) motor vehicle – this is actually a separate claim in detinue (a cause of action in tort, constituted by unlawful possession of a person’s property), which is not directly related to the raid of 1 January 2006 – the plaintiff claims that the vehicle, a Nissan Navara 2 x 4 utility, was unlawfully detained by the Madang Police on 19 August 2005 – damages sought: K30,000.00;

5. There is a paucity of evidence in support of these claims. As to the guesthouse, for example, the only evidence that it was worth K2 million is in the form of brief statements in the plaintiff’s supporting affidavits (exhibits A and D) and a collection of photographs.

6. In para 9 of exhibit A he states:

I built a guest house worth about K2,000,000.00 with all the white goods in it on my premises that were destroyed. The business used to make a turnover of about K20,000.00 a month from the four units that were normally fully occupied because it was located just outside Madang town beside a river with natural vegetation and villages surrounding it. It was a perfect place to relax but within range of town for shopping and amenities.

7. In paras 5 and 6 of exhibit D he states that at various times he had employees of Shorncliffe (PNG) Ltd and Bank of South Pacific Ltd staying in the guesthouse, which generated revenue of K20,000.00 per month. From these statements it is possible to infer that the guesthouse was a substantial structure but drawing the inference that it had a value of K2 million is another matter altogether.

8. There are 12 photographs of what Dr Kawa calls the “ruins” of his premises. They are certainly a depiction of the ruins of something but it is impossible without further explanation or evidence to conclude that they are photographs of a ruined guesthouse; or for that matter a residential house, medical store or workshop. The evidence is scanty indeed.

9. At this juncture it is necessary to refer to some general principles about assessment of damages, in particular:

· 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).

· Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).

· 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).

· The same principles apply after default judgment is entered and the trial is just on assessment of damages. A person who obtains a default judgment is not entitled as of right to receive...