Waki Paru as next friend of Dickson Paru v Geane Wobiro and Others

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Toliken J
• Judgment Date: 21 September 2024
• Neutral Citation: N11005
• Citation: N11005, 2024-09-21
• Docket Number: WS (HR) NO. 996 OF 2014
• Date: 21 September 2024
• Counsel: T. Ilaisa, for the Plaintiff,Nil Appearance by and for the Defendants.,Counsel:

N11005

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 996 OF 2014

Between

Waki Paru as next friend of Dickson Paru

Plaintiff

v.

Geane Wobiro

First Defendant

and

David Tavola, Sergeant

Second Defendant

and

Police Commissioner

Third Defendant

and

Independent State of Papua New Guinea

Fourth Defendant

Alotau: Toliken J

2024: 21^st September

DAMAGES — dependency claim — police shooting — damages claimed — general for negligence — Breach of human rights — suffering, mental distress and anxiety — exemplary damages — special damages — Damages for suffering, mental distress, anguish, and anxiety — Special damages.

Cases Cited:

Mel v Pakalia (2005) SC790

Yooken Paklin v The State (2001) N2212

Albert Baine v The State (1995) N1335

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

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

Yange Lagan and Others v The State (1995) N1369

Obed Lalip and Others v Fred Sikiot and The State (1996) N1457

MVIT v Tabanto [1995] PNGLR 214

Waima v MVIT [1992] PNGLR 254

MVIT v Pupune [1993] PNGLR 370

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

Jonathan Mangope Paraia v The State (1995) N1343

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

Michael Buna v The State (2004) N2696

Komba v Duwaba [2006] N2979

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

Michael Buna v The State (2004) N2696

Komba v Duwaba [2006] N2979

Bayava v Minisang Wankiar and Lufa Local Government Council [1978] PNGLR 39

Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251

Richard Dennis Wallbank and Jannette Minifie v The State [1994] PNGLR 78

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106

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

Motor Vehicle Insurance Ltd v Manduru (2018) SC1750)

Koko v Motor Vehicles Insurance (PNG) Trust [1988–89] PNGLR 167

None v MVIT [1990] PNGLR 561

Tape v MVIT [1990] PNGLR 568

More v Tokam (1997) N1645

Napiri v The Independent State of Papua New Guinea (2006) N2076.

Muna Uokare v The State [1988–89] PNGLR 655

Simin Dingi v MVIT [1994] PNGLR 385

Puk Kum v The State; WS No 44 of 1996 (unreported judgment of 12.09.03

Wiwa v The State (2012) N5271

Counsel:

T. Ilaisa, for the Plaintiff

Nil Appearance by and for the Defendants.

Lawyers for the Plaintiff: The Public Solicitor

Lawyers for the Defendants: The Solicitor General

JUDGMENT

21^st September 2024

1. Toliken J: This an undefended estate and dependency claim for which default judgment on liability was entered on 11^th December 2015. Trial for assessment of damages was heard on 14^th July 2016 and the decision was reserved. This is the decision on the assessment of damages.

Background Facts

2. On the night of Sunday 03^rd March 2013, at about 8.00 o'clock the deceased Dickson Paru and his friend Emmanuel Sakaiyo were walking from the Kwato Community College or Skills Training Centre where they were attending as students to the Kwato Mission Church for choir practice.

3. At the same time, the First and Second Defendants who are policemen and another colleague of theirs were conducting a motorized patrol around the area, in search of criminal suspects who had earlier that night held up a taxicab within the vicinity.

4. The deceased and his friend were about to cross the road when the policemen saw them. The police discharged some shots in the air and as the boys turned to run away, the Second Defendant fired a couple of rounds after them, hitting and killing the deceased instantly. The First and Second Defendants were later charged for the wilful murder of the deceased. The First Defendant was acquitted but the Second Defendant was convicted and sentenced to 25 years. (The State v David Tavolla; CR 1042 of 2013 (Unnumbered and unreported judgment dated 15 May 2017).

5. On 13^th August 2014. The Plaintiff Waku Paru commenced proceedings by way of Writ of Summons, wherein, apart from Geane Wobiro and David Tavolla, he also named one Martin Virani as the First Defendant. The State (Fourth Defendant) filed its Notice of Intention to Defend on 10^th November 2014. None of the other defendants filed any similar notice.

6. On 17^th July 2015, leave was, however, granted for the Plaintiff to remove Martin Virani as a party to the proceedings. The Plaintiff was also ordered to file and serve his Amended Writ of Summons and Statement of Claim by 31 July 2015. The Amended Writ was duly filed on 30^th July 2015. The First and Second Defendants were duly served on 03^rd August 2015. On 31^st July 2015, the Third Defendant was duly served with the Orders of 17^th July and the Amended Writs of Summons.

7. The defendants did not file any defence at all. The Plaintiff issued the necessary warning for default judgment. On 20^th November 2015, the Fourth Defendant (State) was, through the Solicitor General, duly served with a Notice of Motion for default judgment. Default judgment was entered against the Defendants on 11^th December 2015. I heard the Plaintiff on assessment of damages on 14^th July 2016. Despite the necessary notices by the Plaintiff, the Defendants did not make any appearance either in person or by counsel.

The Claim

8. The Plaintiff seeks damages for the following –

— Breaches of human rights against the first and second defendants resulting in the death of the deceased

— General damages for negligence

— Exemplary damages

— Damages for suffering, mental distress, anguish, and anxiety

— Special damages

— Interests

— Cost

THE EVIDENCE

9. The Plaintiff relied on his Affidavit in Support sworn and filed on 31^st March 2016, and Additional Affidavit sworn on 08^th July 2016 and filed on 11^th July 2016. His evidence which went uncontested can be summarized as follows; he is the father of the deceased Dickson Paru who was his first-born child. He comes from Mutuyuwa Village on the outskirts of Alotau Town. He was born on 13^th March 1965 at the Alotau General Hospital. He is married to Nelly Wake, and they had their first child, the deceased, on 25^th September 1994.

10. The late Dickson completed his Primary School education at KB Primary School in 2010 and completed High School at Cameron Secondary School in 2012 but was unable to continue to Grade 11.

11. In 2013 the Plaintiff and his wife enrolled Dickson at the Kwato Skills Training Centre at KB Estate, Alotau. This is a vocational training school offering trade courses in carpentry, mechanics, and home economics for school leavers who are unable to progress to tertiary institutions. Dickson wanted to be an electrician but since classes had just started at the time of his death, he was unable to stream to his desired field of training.

12. The deceased was killed under the following circumstances. On 03^rd March 2013, an attempted robbery of a taxi at KBD Estate, Alotau was reported by the victim at the Alotau Police Station. Using the complainant's taxi, the First and Second defendants proceeded to the scene. They were armed with firearms.

13. They did not locate the suspects and so they proceeded towards the Kwato Skills Training Centre. There they spotted the deceased Dickson and a colleague of his namely Emmanuel Sakaiyo walking towards the intersection with the main road from the Training Centre. The First and second Defendants stopped the taxi, got off and called out to the deceased and his friend and fired at them. The deceased was hit by a bullet on the head and died instantly.

14. At the time of the killing the first defendant was a Constable and was attached to the Alotau Police Station. The Second Defendant held the rank of Sergeant. He was the Commander of the Southern Command Task Force which had been deployed to Alotau to capture the notorious Tommy Baker and his gang.

15. The Plaintiff was notified of his son's death after his body was taken away by the ambulance to the Alotau General Hospital.

16. Subsequently the plaintiff made the necessary arrangements for his son's funeral followed later by the installation of a headstone which was flown in from Port Moresby. The Plaintiff incurred costs for these activities as well as receive cash assistance from the then Local Member of Parliament Mr. Charles Abel and his (Plaintiff) sister Pepi Paru. He also took out a loan from KB Development Limited to help with his expenses.

17. This case attracted public outcry from within the local Alotau and Milne Bay community as well as within the country. Incidentally, the First and second defendants were charged for the wilful murder of the deceased. The First Defendant was acquitted while the Second defendant was convicted and sentenced to 25 years.

Issues

18. What needs to be determined here are the following issues –

1. Has the Plaintiff proved his losses?

2. What is the measure for each head of damages?

Principles On Assessment Of Damages

21. For our present purposes I adopt the summation by the Supreme Court of the applicable principles on assessment of damages in Mel v Pakalia (2005) SC790 (Los, Jalina and Cannings JJ). These are –

• 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. (Yooken Paklin v The State (2001) N2212, Jalina J.)

• Corroboration of a claim is usually required, and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, Lenalia J.)

• 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, Woods J.)

• The same principles...