James Liwa & Peter Kuriti v Markis Vanimo, Dayman Kalino & John Angisa and The Independent State of Papua New Guinea (2008) N3486

• Jurisdiction: Papua New Guinea
• Judge: Makail, AJ
• Judgment Date: 24 September 2008
• Court: National Court
• Citation: (2008) N3486
• Docket Number: WS NO 1049 OF 2005
• Year: 2008
• Judgement Number: N3486

Full Title: WS NO 1049 OF 2005; James Liwa & Peter Kuriti v Markis Vanimo, Dayman Kalino & John Angisa and The Independent State of Papua New Guinea (2008) N3486

National Court: Makail, AJ

Judgment Delivered: 24 September 2008

N3486

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1049 OF 2005

BETWEEN

JAMES LIWA & PETER KURITI

Plaintiffs

AND

MARKIS VANIMO, DAYMAN KALINO & JOHN ANGISA

First Defendants

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Makail, AJ

2008: 24 September

: 10 September

DAMAGES - assessment of damages - loss of profit - arising from PMV operation business - small business operator - proof of - two schools of thought - first, need to prove with independent evidence like bank statements, invoices and receipts of payments of expenses - second, where there is no evidence to contradict or disprove affidavit or oral evidence of plaintiff on amount claim - no evidence of payment of taxes - mandatory - relevance of purpose for paying taxes.

Cases Cited:

Papua New Guinea Cases cited

Harding -v- Terepoi Timbers Pty Ltd [1986] PNGLR 128

Joe Naguwean -v- The State [1992] PNGLR 367

Gladess Evelyn Kumar & Ors -v- Peter Wama & Ors [1993] PNGLR 38

James Koimo -v- The State [1995] PNGLR 535

Jonathan Mangope Paraia -v- The State (1995) N1343

Yange Lagan -v- The State (1995) N1369

Albert Baine -v- The State (1995) N1335

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

Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85

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

Tony Kulam Kapil -v- Commissioner of Police & The State: WS No 1232 of 1998 (Unnumbered & Unreported Judgment of 13 July 2007)

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

Peter Wanis -v- Fred Sikiot & The State (1995) N1350

Gabriel Mappa -v- PNG Electricity Commissions [1995] PNGLR 170

Kerebal Farming & Trading Pty Ltd -v- Queensland Insurance (PNG) Ltd [1995] PNGLR 401

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

Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958

Yooken Paklin -v- The State (2001) N2212

Peter Aigilo v- Sir Mekere Morauta as Prime Minister & The State (2001) N2103

Kolaip Palapi & Others -v- Sergeant Poko & Others (2001) N2274

Andrew Kewa -v- Johnny Lus and Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14 March 2007)

Paulus Kei -v- Tony Hasu & The State (2004) N2743

James Liwa & Peter Kuriti -v- Markis Vanimo & The State: WS No 1049 of 2005 (Unnumbered & Unreported Judgment of 10 September 2008)

Overseas Cases cited:

Bonham Cater -v- Hayden Park Hotel [1948] 64 TLR 177

Counsel:

Mr P. Kopunye, for the Plaintiff

Ms J. Tindiwi, for the Defendants

JUDGMENT

24 September, 2008

1. MAKAIL AJ: The Plaintiffs are suing the Defendants for the negligent actions of the First Defendants who are members of the Royal Papua New Guinea Constabulary for confiscating registration documents of their motor vehicle, a 15 seater bus (“bus”) and also two driver’s licences on 8 May 2000 in Mt Hagen. The registration documents consisted of Motor Vehicle Third Party Certificates, Land Transport Approvals and a PMV licence and a Class 6 driver’s licence. They claim that despite numerous requests for the return of the documents and licences, the First Defendants did not return them until about two and a half years later. As a result, they claim that they were deprived of using the bus to operate a PMV business and lost money.

2. On 21 November 2007, the Court entered default judgment against the Defendants for their failure to file their Notice of Intention to Defend and Defence. Hence, the matter is before the Court for assessment of damages only.

3. At the close of all evidence, I invited both counsel to make submissions on the appropriate amount of damages I should award to the Plaintiff. Mr Kopunye of counsel for the Plaintiffs presented a written submission and made brief oral submissions. Ms Tindiwi of counsel for the Defendants did likewise and I reserved my judgment to 22 September 2008 but have been unable to have it ready until today and this is my judgment.

EVIDENCE

4. The Plaintiffs rely on the Affidavit of Peter Kuriti sworn on 7 July 2006 and filed on 10 July 2006 to support their claim for damages which was admitted into evidence without objection from the Defendants and marked as Exhibit “P5”.

5. The following documents were also admitted into evidence after they were objected to by counsel for the Defendants on the basis of late notice and I heard submissions from both counsel and ruled on the objection: see my ruling in James Liwa & Peter Kuriti -v- Markis Vanimo & The State: WS No 1049 of 2005 (Unnumbered & Unreported Judgment of 10 September 2008):

1. Cargo Receipt No 16297 undated - Exhibit “P1”

2. Temporary Permit dated 26 March 1999 - Exhibit “P2”

3. Delivery Docket dated 26 March 1999 - Exhibit “P3”

4. Hand written note from Peter Kuriti

to the First Defendants dated 22 May 2000 - Exhibit “P4”

6. I should also mention here that Mr Kopunye informed the Court that one of the Plaintiffs, James Liwa has since died and so, he would not be relying on the Affidavit of James Liwa to support the claim for damages by the Plaintiffs in the trial. I will return to comment on this aspect later on in the judgment.

7. Counsel for the Defendants cross examined Mr Kuriti on his Affidavit evidence. The Defendant offered no evidence, thus much of the evidence of Mr Kuriti remains unchallenged or not rebutted. I will refer to the relevant parts of Mr Kuriti’s evidence as we go along.

ASSESSMENT OF DAMAGES

8. In terms of assessment of damages, it is now settle law that in a case of assessment of damages whether default judgment is entered or liability is determine after a trial, the onus of proof of the Plaintiff’s loss or losses remains with the Plaintiff. See the cases of Yange Lagan -v- The State (1995) N1369 and Jonathan Mangope Paraia -v- The State (1995) N1343.

9. In Bonham Cater -v- Hayden Park Hotel [1948] 64 TLR 177 at p 178, Lord Goddard CJ said that:

“Plaintiff must understand that if they bring action for damages it is not enough to write down particulars and so to speak, throw them at the hand of court saying - This is what I have lost, I ask you to give me this damages. They have to prove it”.

10. In the cases of Albert Baine -v- The State (1995) N1335 and Kopung Brothers Business Group -v- Sakawar Kasieng [1997] PNGLR 331, it was held that corroboration of a claim is usually required and the corroboration must come from an independent source whilst in Peter Wanis -v- Fred Sikiot & The State (1995) N1350 it was held that the principles of proof and corroboration apply even when the Defendant fails to present any evidence disputing the claim.

11. Then in the case of Yooken Paklin -v- The State (2001) N2212, it was held that 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. The other case is Kolaip Palapi & Others -v- Sergeant Poko & Others (2001) N2274 where the Court held that the Court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The Court must only uphold genuine claims.

12. From the Statement of Claim endorsed to the Writ of Summons filed on 11 July 2005, the Plaintiff claims the following damages:

1. Loss of profit - K 64,430.00;

2. Damages for frustration,

distress & anxiety - K 5,000.00 - K 10,000.00;

3. Exemplary damages - K 5,000.00 - K 10,000.00;

4. 8% Interest

5. Costs

13. I consider each of the head of damages below.

Loss of profit

14. First, the Plaintiff makes a claim for loss of profit. In his written submissions, Mr Kopunye submits that the Court should award a sum of K186,846.07 after deduction of 15% contingencies from a total net sum of K290,820.00. He submits that this amount is claimed because the Plaintiffs were operating a PMV services using the bus when the First Defendants in the performance of their official duties as police traffic officers confiscated the registration documents and licences from Mr Kuriti and held onto them for two and half years. He further submits that the First Defendants also warned Mr Kuriti not to use the bus until he attends at the police station and sort out the registration of the bus.

15. Mr Kopunye refers me to the case of Gabriel Mappa -v- PNG Electricity Commissions [1995] PNGLR 170 where the Plaintiff sued the Defendant for loss of income after the Plaintiff’s 25 seater bus collided with the Defendant’s motor vehicle. Following a National Court award of loss of income to the Plaintiff, the Defendant appealed to the Supreme Court and the Supreme Court upheld the appeal and remitted the matter to the National Court for re assessment. After the re trial, the National held that as proper business records and tax returns were not presented to the Court, it could not award any damages for loss of income. Based on the evidence presented, the Court only awarded K 1,033.90 for loss of profit.

16. In the other case of Kerekal Farming & Trading Pty Ltd -v- Queensland Insurance...