Nick Betanjo for himself and 100 others named in the Schedule to the Writ v Fred Yakasa, Metropolitan Superintendent, National Capital District and Gari Baki, Commissioner of Police and the Independent State of Papua New Guinea (2020) N8419

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 July 2020
• Court: National Court
• Citation: (2020) N8419
• Docket Number: WS No 1406 of 2010
• Year: 2020
• Judgement Number: N8419

Full Title: WS No 1406 of 2010; Nick Betanjo for himself and 100 others named in the Schedule to the Writ v Fred Yakasa, Metropolitan Superintendent, National Capital District and Gari Baki, Commissioner of Police and the Independent State of Papua New Guinea (2020) N8419

National Court: Cannings J

Judgment Delivered: 17 July 2020

N8419

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1406 OF 2010

BETWEEN:

NICK BETANJO FOR HIMSELF

AND 100 OTHERS NAMED IN THE SCHEDULE TO THE WRIT

Plaintiffs

AND:

FRED YAKASA, METROPOLITAN SUPERINTENDENT,

NATIONAL CAPITAL DISTRICT

First Defendant

GARI BAKI, COMMISSIONER OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2020: 17th, 22nd April, 12th, 17th, 22nd June, 17th July

DAMAGES – breach of human rights – Police raid of urban settlement – property damage –assessment of damages after trial on liability.

The plaintiffs sued the defendants (various members of the Police Force and the State) in connection with a police raid of the urban settlement in which they lived. A trial on liability resulted in judgment in favour of the plaintiffs, against the first defendant (the member of the Police Force who led the raid) and the third defendant (the State), for negligence and for human rights breaches under ss 36(1) (freedom from inhuman treatment), 49 (right to privacy) and 53 (protection from unjust deprivation of property) of the Constitution. At the trial on assessment of damages, 100 plaintiffs gave evidence and sought damages in five categories: (a) special damages (property losses), various amounts totalling approximately K4.6 million; (b) general damages for pain and suffering, distress etc, K20,000.00 each; (c) damages for trespass, K10,000.00 each; (d) damages for breach of human rights, K15,000.00 each; and (e) exemplary damages, K15,000.00, a grand total of approximately K10.6 million. In response, the defendants submitted that the plaintiffs should be awarded: (a) nothing for special damages (property losses), as the claims were excessive, uncorroborated and based on a valuation report lacking credibility; (b) K2,500.00 each for general damages for pain and suffering, distress etc; (c) nothing for trespass (as no liability was established for the tort of trespass); (d) K2,500.00 each for damages for breach of human rights; and (e) K2,500.00 each for exemplary damages, a grand total of K750,000.00.

Held:

Though there were deficiencies in the plaintiffs’ evidence, damages were awarded to each plaintiff who gave evidence in the following amounts: (a) special damages (property losses), each claim being discounted by 90% to arrive at an appropriate assessment, a total of K468,389.73; (b) general damages for pain and suffering, distress etc, K10,000.00 each, a total of K1,000,000.00; (c) damages for trespass, zero; (d) damages for breach of human rights, K5,000.00 each, a total of K500,000.00; and (e) exemplary damages, K5,000.00, a total of K500,000.00. The grand total of damages awarded was K2,468,389.73.

In addition, each plaintiff was awarded interest on the amount of damages awarded to them, at the rate of 2% per annum, for the period from the date of the filing of the writ to the date of judgment, a period of 9.68 years, a total of K478,373.93. The total judgment sum was K2,946,763.65.

Cases Cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

Alphonse Willie v Simon Kaupa (2016) N6553

Anuta Jobou v Alfred Kumasi and The State (2012) N4607

Eton Pakui v The State (2006) N2977

Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221

Jacinta Albert v Joseph Aine (2019) N7772

Joe Tipaiza v James Yali (2008) N3472

Jonathan Mangope Paraia v The State (1995) N1343

Justin Bau v Paul Karl (2010) N4123

Kolaip Palapi v Sergeant Poko (2001) N2274

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

Michael Jacob v Jim Namora & The State (2020) N8385

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

Stanley Baine v Arnold Ulga & The State (2019) N8076

Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100

Yooken Pakilin v The State (2001) N2212

ASSESSMENT

This was a trial on assessment of damages following a trial on liability.

Counsel:

T T Yai, for the Plaintiffs

T Mileng, for the Defendants

17th July, 2020

1. CANNINGS J: This is an assessment of damages following a trial on liability, in which the first defendant (a member of the Police Force) and the third defendant (the State) were found liable for human rights breaches committed against the plaintiffs in a police raid of Maramuni Block, Five Mile settlement, Gordon Ridge, National Capital District, carried out on Saturday 26 June 2010. A total of 100 plaintiffs have given evidence.

2. The police raid was undertaken in response to an alcohol-fuelled incident surrounding a State of Origin match earlier in the week in which two men were killed. The Police arrived at the settlement on the morning of 25 June 2010 and ordered the residents to hand over the suspects, but were evidently not satisfied with the level of cooperation they received. The raid began at 10.00 am on 26 June 2010 and continued throughout that day. The police were fully armed and a bulldozer was deployed to destroy houses, stores and other structures. There was no court order authorising the raid and it was not authorised by any other lawful process. Those are the facts on which liability has been established.

PLAINTIFFS’ CLAIMS AND DEFENDANTS’ RESPONSE

3. The plaintiffs seek damages in five categories:

(a) special damages (property losses), various amounts totalling approximately K4.6 million;

(b) general damages for pain and suffering, distress etc, K20,000.00 each;

(c) damages for trespass, K10,000.00 each;

(d) damages for breach of human rights, K15,000.00 each; and

(e) exemplary damages, K15,000.00 each;

a grand total of approximately K10.6 million.

4. In response, the defendants submit that the plaintiffs should be awarded: (a) nothing for special damages (property losses), as the claims were excessive, uncorroborated and based on a valuation report lacking credibility; (b) K2,500.00 each for general damages for pain and suffering, distress etc; (c) nothing for trespass (as no liability was established for the tort of trespass); (d) K2,500.00 each for damages for breach of human rights; and (e) K2,500.00 each for exemplary damages, a grand total of K750,000.00.

EVIDENCE

5. The plaintiffs’ case consisted of affidavits sworn by 100 plaintiffs, deposing to what the police had done and the property damage the deponent had incurred and/or witnessed. There was no evidence for the defendants.

DETERMINATION OF LIABILITY

6. The terms of the order of 1 August 2019 are that the plaintiffsestablished liability against the first and third defendants in negligence and for breaches of human rights under ss 36(1) (freedom from inhuman treatment), 49 (right to privacy) and 53 (protection from unjust deprivation of property) of the Constitution.

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES

7. In assessing damages I have had regard to the following principles:

The plaintiffs have the onus of proving their losses 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 (Yooken Pakilin 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 fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).

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 (Kolaip Palapi v Sergeant Poko (2001) N2274).

APPROACH TO ASSESSMENT OF DAMAGES

8. I will assess damages in the five categories of damages claimed by the plaintiffs.

PROPERTY LOSSES

9. Mr Mileng, for the defendants, pointed out many deficiencies in the plaintiffs’ evidence, in his detailed and helpful written submission. I take into account that there is a detailed valuation report corroborating the plaintiffs’ claims but I agree that the evidence as to how it was prepared strains credibility. The lead plaintiff, Nick Betanjo, states that after the police arrived on the morning of 25 June and spoke to the residents and threatened that if they did not cooperate there would be trouble, he sensed that the Police were serious, so he hurriedly sought the services...