Nelson Pawa v Linus Yumbun, Officer in Charge, Porgera Police Station and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3784

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2009) N3784
• Year: 2009
• Docket Number: WS NO 830 OF 1999
• Date: 06 November 2009

Full Title: WS NO 830 OF 1999; Nelson Pawa v Linus Yumbun, Officer in Charge, Porgera Police Station and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2009) N3784

National Court: Makail J

Judgment Delivered: 6 November 2009

DAMAGES - Assessment of damages - Negligence actions by members of police force - Damage to PMV bus - Cost of repairs - Loss of profit - Damages for breaches of constitutional rights - Exemplary damages - Special damages - Whether damages established on balance of probabilities - Various awards made.

Cases cited:

James Liwa v Markis Vanimo (2008) N3486; William Patitts v The Independent State of PNG (2006) N3088; Abel Tomba v The State (1997) SC518; MVIT v Salio Tabanto [1995] PNGLR 214; Tabie Mathias Koim v The State [1998] PNGLR 247

JUDGMENT

1. MAKAIL J: The plaintiff sues the defendants for damages suffered from damage done to his PMV bus, a Mini bus bearing registration no P-5854 (“PMV bus”) by a group of unidentified policemen under the command and control of the first defendant when they entered his premises located at Porgera town and without good reason willfully damaged the PMV bus and removed cash of K300.00 on 23rd October 1998.

2. Default judgment was entered against the defendants on 18th October 2000, hence liability is no longer in issue and the matter comes before me for assessment of damages based on the negligent actions of the members of the police force under the command and control of the first defendant. The plaintiff claims that he spent K7,473.40 for cost of repairs and had lost profit at an average of K180.00 per day or K2,160.00 for 12 days as a result of the damage done to his PMV bus. In seeking to establish his damages, he relies on the following affidavits and documentary evidence:

1. His affidavit sworn on 10th April 2001 and filed on 8th May 2001 (Exhibit “P1”);

2. His supplementary affidavit sworn on 25th September 2006 and filed on 025th September 2006 (Exhibit “P2”);

3. Registration Certificate of PMV bus issued in 9th May 1998 (Exhibit “P3”);

4. Certificate of Insurance for period 9th May 1998 to 9th May 1999 (Exhibit “P4”);

5. PMV licence no 59886 dated 11th May 1998 (Exhibit “P5”);

6. Certificate of Roadworthiness and Receipts of payments from Western Highlands Provincial Government (Exhibit “P6”);

7. Court Order of Wabag District Court of 23rd June 1999 (Exhibit “P7”);

8. Receipt of payment of K5,000.00 from Jay Tee Motors Limited dated 24th January 1999 (Exhibit “P8”); and

9. Receipt of payment of K500.00 (Exhibit “P9”).

3. The plaintiff also gave oral evidence in respect to his claim for special damages and was cross examined by defence counsel. The defendants on the other hand offered no evidence to refute the evidence of the plaintiff.

4. From the undisputed evidence of the plaintiff, I find that on 23rd October 1998, a group of unidentified policemen led by the first defendant entered the plaintiff’s premises located at Porgera town and willfully damaged his PMV bus and removed cash of K300.00. I make these findings of fact notwithstanding the defence counsel’s submissions that there is no evidence directly connecting the policemen to the missing or stolen cash of K300.00 from the glove box of the plaintiff’s PMV bus. This is because, there is no evidence from the defendants either denying or refuting the plaintiff’s evidence that the members of the police force stole the K300.00 in the course of damaging his PMV bus. I will return to discuss this aspect of the claim later on but for now, the primary issue therefore is, has the plaintiff established his damages on the balance of probabilities?

5. Although defence counsel attempted to draw the Court’s attention during cross examination of the plaintiff to the fact that the same complaint against the defendants was brought before the Wabag District Court and struck out, counsel did not address that aspect in her final submissions to the Court. Nonetheless, it is pretty obvious that it was a waste of time for defence counsel to dwell on this issue that is obviously a question of law, rather than of fact to defend the negligent actions of the defendants. For it is not denied by the plaintiff that the Wabag District Court had struck out the plaintiff’s...