Martin Piaore v Ian Barr and The Independent State of Papua New Guinea (2009) N3786

• Jurisdiction: Papua New Guinea
• Judge: Wabag: Yalo, AJ
• Judgment Date: 16 November 2009
• Court: National Court
• Citation: (2009) N3786
• Docket Number: WS NO 213 OF 2000
• Year: 2009
• Judgement Number: N3786

Full Title: WS NO 213 OF 2000; Martin Piaore v Ian Barr and The Independent State of Papua New Guinea (2009) N3786

National Court: Wabag: Yalo, AJ

Judgment Delivered: 16 November 2009

N3786

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 213 OF 2000

BETWEEN:

MARTIN PIAORE

Plaintiff

AND:

IAN BARR

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Wabag: Yalo, AJ

2009: 14 and 15 April

16 November

Cases cited

Papua New Guinea Cases

MVIT v Pupune [1993] PNGLR 370 (Supreme Court)

MVIT v Tabanto [1995] PNGLR 214 (Supreme Court)

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

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

Waima v MVIT [1992] PNGLR 254

PNGLR 370 and Motor Vehicle Insurance (PNG) Trust v John Etape [1995] PNGLR 214

Tabie Mathias Kolim and 28 Others v The State and Others [1998] PNGLR 247

Albert Baline v The State (1995) N1335

Jonathan Mangope Paraia v The State (1995) N1343

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

Yange Lagan and Others v The State (1995) N1369

Obed Lalip & 20 Ors v Fred Sikiot & The State (1996) N1457

Yooken Paklin v Waugulo, Tokam and The State (2001) N2212

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Buna v Independent State of Papua New Guinea (2004) N2696

Pole v Independent State of Papua New Guinea (2008) N3500

Overseas Cases:

Livingstone v Rawyards Coal (1880) 5 App Case 25

British Transport Commission v Gourley [1956] Act 185

Bonham Carter v Hyden Park Hotel (1948) 64TLR 177

Counsels

Mr M. C. Thoke, for Plaintiff

Ms T. Tupo, for Defendants

1 YALO AJ: The plaintiff claimed damages against the defendants for destruction of food gardens and other properties. In 1996 and 1997 the first defendant was then the General Works Manager at Wabag. He was employed by the State through the Department of Works. He supervised the road works along the Wapenamanda /Wabag Road. The first defendant had used machineries such as bulldozers, excavators and dump trucks for the road works. The plaintiff asserted that the first defendant had in the course of conducting the road works dug and removed soil along the road and when it rained rainwater flooded food gardens and destroyed the crops, plants and trees and other improvements beyond the 20 meter reserve land. The plaintiff claimed damages for constant flooding of his gardens and other cultivated areas and for landslide that had damaged his gardens and trees and other crops. He claimed past and future economic loss in that he has been deprived from the use of his land.

2 Default judgment was granted on 9 May and entered on 14 May 2001. The defendants’ application filed on 3 August 2006 seeking to set aside the default judgment and dismiss the entire proceedings was dismissed on 27 October 2008 for want of prosecution.

ISSUES

3 The issues in these proceedings are as succinctly stated by the defendants. I restate them as follows:

1 Is the plaintiff entitled to each head of damages claimed?

2 What amount of damages should be awarded?

PLAINTIFF’S SUBMISSIONS

4 The plaintiff argued that the second defendant through its agent, the first defendant constructed road between Western Highlands Province and Wabag which resulted in flood causing damage to his properties. The court granted and entered default judgment on 14 May 2001. The matter came before me for assessment of damages.

5 The plaintiff relied on his own evidence and the evidence of other witnesses. The plaintiff gave sworn evidence in the Enga Language. He relied on his affidavit sworn on 13 and filed on 14 October 2008. He said the affidavit was read to him and he understood the contents and signed it as being accurate. When his lawyer asked if he had anything more to say the plaintiff said that in 2008 he incurred further costs and he wrote to his lawyer. He filed further affidavit on 14 October 2008, court document No 29 marked as plaintiff’s “A”. The defendants chose not to cross-examine the plaintiff.

6 The plaintiff called the next witness, Mr Bernard Kipakapu, who assessed the damages done to the plaintiff’s properties. He filed an affidavit on 13 October 2008. His affidavit was tendered into evidence and was marked as Exhibit “B”. No further oral evidence was adduced from the witness. The defendants chose not to cross-examine the witness.

7 Counsel for the plaintiff submitted on the heads of claim as follows. In relation to damages for economic loss Mr Thoke submitted that this relates to the environmental damages suffered by the plaintiff which he said are set out in Bernard Kipakapu’s affidavit. Mr Kipakapu is from the District Office Wabag, Enga Province. He stated clearly that he physically attended or visited the sites and assessed actual loss suffered by the plaintiff. He was an expert and an independent officer who listed each item or property damaged. Annexure A2-A9 set out the actual environmental damages suffered by the plaintiff. The damages suffered are enumerated as follows:

(1) Apumanda K13,350.00

(2) Pomberande K11,837.00

(3) Lenki Mapoes K02,902.00

(4) Apumanda K02,290.00

(5) Kilidisa K06,402.00

(6) Subaemus K31,445.00

(7) Lepagona K31,978.00

(8) Pakorisa K48,029.00

(9) Timogopiakapaka K53,932.00

Total: K201,916.00

7 Mr Thoke submitted that this assessment was done based on rates provided by Department of Primary Industry (DPI). Mr Kipakapu was requested by DPI officer Kieth Yaene to attend the affected site and assess the damages.

9 The plaintiff Martin Piaroe’s affidavit deposed to the facts that he was the customary land owner of the areas affected by the flooding beyond 20 meters of reserve land. He said dumping of waste soil on the side of the road by the defendants or their officers had caused the soil erosion and flooding. He further named the areas affected by the flood and claimed the total amount of K201,916.00 assessed by Mr Kipakapu in his report.

10 It was submitted for the plaintiff that his two affidavits are consistent and set out clearly each item destroyed and this court should accept the assessment done by Mr. B. Kipakapu. Furthermore, since the defendants have provided no evidence to counter the claim the plaintiff has proven his losses. The amount claimed is reasonable, as it is assessed by an officer of the State.

11 The plaintiff claimed K5,546.00 in special damages. He has provided evidence under paragraph 15 of his affidavit wherein he has annexed (Annexure B) copies of some receipts. The plaintiff argued that given the fact that this matter has taken so long and the State had filed various applications prior to this trial and taking into account pocket expenses a reasonable amount of K5,546.00 should be awarded.

12 Finally the plaintiff asked for an award of 8% interest from the date of issue of writ to date of settlement pursuant to Judicial Proceeding (Interest on Debts and Damages) Act. He asked for full costs of the entire proceedings as the State had filed three applications without taking steps to prosecute the case and the matter was dragged on for last 8 years.

DEFENDANTS’ SUBMISSIONS

13 Counsel relied on their written submissions. Their lengthy submissions attack the plaintiff’s claim on two main grounds, namely lack of evidence to substantiate the claim and lack of proper pleadings.

14 The defendants argued that the evidence and pleadings are very confusing and contradictory in many respects as demonstrated in their reasons. There is lack of corroborative material evidence and the court must deal with Mr. Bernard Kipakapu’s evidence with caution, if not skepticism. It is difficult to make clear and precise findings of fact for the following reasons:

a) The plaintiff failed to quantify the number of trees and crops destroyed;

b) What type of trees and plants were lost;

c) What production of the land was eroded or damages and;

d) No map or sketches or photographs of the land were adduced in the evidence.

e) The court was not invited to inspect the site

f) There is no independent evidence, e.g. from a family member or member of community, deposing to losses suffered as alleged to by the plaintiff.

g) The plaintiff failed to demonstrate how the value of K201,916.00 was reached.

15 The defendants submitted that the evidence provided by Mr Bernard Kipakapu have the following discrepancies:

a) Annexure “A” of Bernard Kipakapu’s affidavit is a letter dated 27 August 1997. Under paragraph 3 line 2 of that letter, he deposed to have conducted a physical count made in five separate locations. He goes on further to say in paragraph 3 that the sixth location was done by one Mr. Peter Yange. Annexure “A2” to “A6” are the 5 areas in which the deponent deposed to have conducted his counts. And according to his assessment he values the loss at K36,531.50. In annexure “A7” he deposed in paragraph 3 of the cover letter in annexure “A” to have been conducted by one Peter Yange. This is hearsay evidence and cannot be relied upon. As for Annexure “A8” to “A10”there is no indication as to who conducted the assessment and how the total value of K167,384.50 was reached.

b) Mr. Bernard Kipakapu is not a registered Valuer to have reached the total of K201,916.00 .

c) No working documents, calculation sketch maps, photograph 4 of his affidavit.

d) There is no...