Komai Hariwaja v PNG Power Ltd

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Kandakasi, J
• Judgment Date: 04 September 2018
• Citation: (2018) N7488
• Judgment Number: N7488
• Year: 2018

Full : WS No 1371 of 2014; Komai Hariwaja v PNG Power Ltd (2018) N7488

National Court: Kandakasi, J

Judgment Delivered: 4 September 2018

N7488

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.1371 OF 2014

BETWEEN

KOMAI HARIWAJA

Plaintiff

AND

PNG POWER LTD

Defendant

Waigani: Kandakasi, J

2016: 19 April

2018: 4 September

DAMAGES – Assessment of damages - Liability resolved by default judgment - Relevant principles – No issue on liability can be raised except for any new matter raised outside those already pleaded and resolved by judgment on liability – Only items properly pleaded and evidence adduced can be allowed – No assessment of damages for alleged loss of dependency on grounds of lack of proper pleadings and lack of credible evidence – Estate claim allowed at K8,000 and reasonable funeral expenses at K12,000.000 in the absence of any specific evidence for more - Damages for solatium awarded at amounts fixed by statute – Only Parliament can change it – Ss. 28(2), 29(2), 34(1) Wrongs (Miscellaneous Provisions) Act (Chap.297).

Cases cited:

Papua New Guinea Cases

Andale More and Manis Andale v. Henry Tokam and The State (1997) N1645.

Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118

Inabari v. Sapat and The State [1991] PNGLR 427.

Jackson Koko and Elisha Koko v. MVIT [1988] PNGLR 167

Jackson Mari v. Dr Sano Tahong (2015) N6241

MVIT v. John Etape [1995] PNGLR 214

MVIT v. James Pupune [1993] PNGLR 370

Muna Uokare v. The State [1988-89] PNGLR 655

None v. MVIT [1990] PNGLR 561

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694

Paul Komba v. Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979

Roy Manduru v. MVIL (2016) N6509

Robert Wandokun v. Manase Leeman & Madang Provincial Government (2015) N5950

Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363

Simin Dingi v. MVIT [1994] PNGLR 385

Tapi v. MVIL [1990] PNGLR 568

Wallbank and Minifie v. The State [1994] PNGLR 78

Overseas cases

Shaw v. Shaw [1954] 2 QB 429

Counsel:

S. Wanis, for the Plaintiff

D. Dusava, for the Defendant

4th September, 2018

1. KANDAKASI J: The Plaintiff is seeking damages from the Defendant, PNG Power Ltd for the loss of his child through electrocution. Default judgment resolved the question of liability. Eventually, the matter came before me on trial for an assessment of the Plaintiff’s damages. Loss of dependency, estate claim, solatium and special damages especially for funeral expenses are the heads of damages claimed. However, the pleadings do not lay any good and enough foundation for each, if not, for all the heads of damages claimed.

2. The issues for this Court to determine are thus straightforward and they are:

(1) Whether the pleadings lay sufficient and good foundation for the various heads of damages claimed?

(2) Subject to an answer to the first issue, has the Plaintiff adduce enough and credible evidence supporting each or all of the damages claim?

(3) Provided questions (1) and (2) are answered in the affirmative, what is the reasonable amount of damages to be assessed for each head of damages claimed?

First Issue – Sufficiency of Pleadings

3. It is settled law that plaintiffs must have the basis for their claims sufficiently pleaded with the relevant and necessary particulars in their statements of claim. The Supreme Court in Grand Chief Sir Michael Thomas Somare v. Chronox Manek

(2011) SC1118

11 succinctly stated the relevant principles in these terms:

“As has been noted in many decisions of the Supreme and National Courts, pleadings lay the foundation for a claim and determine the relevance and kinds of evidence the parties may call and the kinds of relief the Court could grant if proven. Given that, the law requires parties in particular, plaintiffs to properly plead and then establish by appropriate evidence their alleged loss or damages. Where plaintiffs have failed to do that, both this and the National Courts have correctly denied them of their claims. This is the case, because without the necessary foundation in the pleadings, there can be nothing on which the Court can be properly seized of a matter and proceed to properly and legally exercise its jurisdiction.”

4. The Court cited the decisions in Papua New Guinea Banking Corporation v. Jeff Tole

(2002) SC694.

22 and Steven Charles Pickthall v. Lae Plumbing Pty Ltd

[1994] PNGLR 363.

33 as cases on point. In the Jeff Tole case, as a member of the Court, I summarised the law on pleadings in the following terms:

“The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed. This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The list of such cases is long, but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only.

This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:

‘1. they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;

2. they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and

3. they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham (1982) 148 CLR 658 at 664.’”

5. In the present case, the pleadings relevantly plead at paragraph 8 as follows:

“As a direct result of the death of the deceased, the Plaintiff has suffered damages and losses and has incurred expenses associated with the death of the deceased, namely:

i. Medical expenses incurred as a result of the death of the deceased.

ii. Expenses associated with the funeral and cremation of the deceased.

ii. Costs of erecting a headstone over the grave of the deceased person.”

6. This very brief pleading is then immediately followed by the Plaintiff’s prayer for relief which reads:

“AND THE PLAINTIFF therefore claims:

i. General damages.

ii. Special damages for expenses incurred as a direct result of the death of the deceased.

iii. Damages for solatium.

iv. Exemplary damages pursuant to Section 57 of the Constitution.

v. Damages for causing unnecessary pain, suffering, stress, anxiety and worry.

vi. Interest at 8% from the date of filing this Writ to the time of settlement of the judgment debt.

vii. Costs of the entire proceeding to be taxed if not agreed.

viii. Time be abridged to the time of settlement.

ix. Any such further Order (s) this Honourable Court deems just.”

7. Clearly, the pleadings are in want of better pleadings to lay any proper foundation for any of the reliefs sought and set out in the prayer for relief. Notwithstanding this insufficient set of pleadings, liability was resolved in favour of the Plaintiff on 20th June 2016, by the entry of default judgment for the Plaintiff with damages to be assessed.

8. Counsel for the Plaintiff concedes to the lack of proper foundation in the pleadings particularly in respect of a claim for loss of dependency. Nevertheless, he argues for an award in the sum of K100,000.00 for loss of dependency. In so arguing, reliance is placed on the decision of Canning J., in Paul Komba v. Nauli Duwaba, Headmaster, Tabubil High School.

(2006) N2979.

44 There, the plaintiff sued for damages based on the tort of negligence against a school headmaster, the Commissioner of Police and the State following the death of his son, a school student. The defendants did not file a defence and the court entered default judgment against them. A trial for the assessment of damages then followed. In assessing the plaintiff’s damages, his honour decided to depart from the common law position of children being dependant on parents and not parents depending on their children. His honour noted that, the decisions for example in None v. MVIT

[1990] PNGLR 561.

55 and Tapi v. MVIL

[1990] PNGLR 568.

66 adopted and applied in Papua New Guinea the common law position where children leave their parents and live with their own families upon reaching their age of majority. His honour commenting on the...