WS No. 274 OF 2002; Dobiam Kope and Evelyn Kope and Maurice Dope a child by is next friend Dobiam Dope v Tourism PNG Ltd and To’oro Aihi and John R. Wild (2010) N4138

• Jurisdiction: Papua New Guinea
• Judge: Gavara - Nanu J
• Judgment Date: 07 September 2010
• Court: National Court
• Citation: (2010) N4138
• Year: 2010
• Judgement Number: N4138

Full Title: WS No. 274 OF 2002; Dobiam Kope and Evelyn Kope and Maurice Dope a child by is next friend Dobiam Dope v Tourism PNG Ltd and To’oro Aihi and John R. Wild (2010) N4138

National Court: Gavara - Nanu J

Judgment Delivered: 7 September 2010

N4138

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 274 OF 2002

BETWEEN:

DOBIAM KOPE

First Plaintiff

AND:

EVELYN KOPE

Second Plaintiff

AND:

MAURICE DOPE a child by is next friend DOBIAM DOPE

Third Plaintiff

AND:

TOURISM PNG LTD

First Defendant

AND:

TO’ORO AIHI

Second Defendant

AND:

JOHN R. WILD

Third Defendant

Waigani: Gavara - Nanu

2008: 23 October

2010: 07 September

DAMAGES - Practice and Procedure – Special damages – Need to strictly prove damages – Exemplary damages - Statutory breach not proved – Claims dismissed - All the plaintiffs claiming damages as employees – A plaintiff who is a child has no standing to claim damages as an employee.

DAMAGES - Practice and Procedure – General damages – Employer owing a common law duty of care to employees to provide safe work place – Employer failing to provide safe work place for the employees.

DAMAGES - Practice and Procedure – Costs – Plaintiffs only partially successful in their claims – Reduced costs awarded to the plaintiffs.

DAMAGES - Practice and Procedure – Interest – Plaintiffs not claiming interest – Court has no power to award interest on damages awarded.

Cases cited:

Papua New Guinea Cases

Andrew Cashwell –v- National Parks Board [1987] PNGLR 458

Banz Kofi Fectori -v- Ramond Apa N2374

Bepiwan Ambom -v- Motor Vehicles Insurance (PNG) Trusts (MVIT) (1992) N1116

Delphi Corporate Investigations -v- Bevan Kipit N2480

Demba Kalo –v- Connie Akaya (2007) N3213

Edwards –v- Jordon Lighting [1978] PNGLR 273

Eliekim Laki –v- Maurice Alaluku, Secretary for Department of Lands and Physical Planniong [2000] PNGLR 392

James Robert Colbert –v- Independent State of Papua New Guinea [1988 – 89] PNGLR 590

Joe Maguwean -v- The State [1992] PNGLR 367

Karawari Lodge Pty Ltd -v- Bernard Luck (1998) S.C 553

Newsat Ltd –v- Telikom PNG Ltd (2007) N3448

Papua Club Inc. –v- Nusaum Holding Limited & 5 Others N2603

Paul John –v- Gerd Lindhardet and Servicom Pty Ltd (1999) N1983

Post & Telecommunication -v- MVIT N2479

Roslyne Kusa -v- MVIT N2328

Wilhelm Lubbering –v- Bougainville Copper Ltd [1977] PNGLR 183

Overseas cases

Stroms Bruks Aktie Bolag -v- John Peter Hutchison [1905] A.C 515 at 525 to 526

A.C.I Metal -v- Boczulik (1964) 110 C.L.R. 372

Ashdown -v- Williamson [1957] 1 Q.B. 409 (C.A.)

Uren –v- John Fairfax & Sons Pty Ltd (1966) 117 C.L.R. 118

Counsel

D. Kombagle, for the plaintiffs

J. Parina, for the defendants

1. GAVARA-NANU J: The plaintiffs are claiming damages against the defendants for an alleged failure by the defendants to provide safe work place for them and for the defendants’ alleged failure to comply with requirements under the Workers Compensation Act, Chapter 179, to lodge compensation claims for the injuries allegedly suffered by them and the defendants’ alleged failure to take out insurance covers for them.

2. The plaintiffs’ claims arise out of a robbery which occurred on 29 May, 1999, at Woitape lodge (“the lodge”) in the Goilala District of the Central Province.

3. The first plaintiff was the Manager of the lodge and the second plaintiff was the Assistant Manager, the third plaintiff is the son of the first and second plaintiffs who are a husband and wife. The third plaintiff was about five years old when the robbery occurred.

4. The lodge was owned by the third defendant, the second defendant was the General Manager of the first defendant and the third defendant was the Chief Executive Officer and proprietor of the first defendant. There is no challenge to these facts by the defendants and I accept them.

5. The robbery occurred between 11.00pm on 29 May, 1999 and 3.00 or 4.00 am on 30 May, 1999.

6. At about 11.00 pm on 29 May, 1999, the plaintiffs were sleeping in their bedroom which was on the top floor of the two storey lodge, the bottom floor of the lodge was where the dinning room, bar and guests’ rooms were located.

7. The first two plaintiffs told the Court that at about 11.00 pm on 29 May, 1999, a gang of six men armed with guns and bush knives went to the lodge and fired shots before breaking and entering the lodge. The men stole things from the lodge which included liquor from the bar. They asked the plaintiffs for a “smart white man”, when the first plaintiff told them that the white man was no longer working at the lodge, they demanded money from him and assaulted him with a butt of a gun one of the men was holding. The men then got money from the bar and went upstairs to the plaintiffs’ bedroom. There, they demanded money from the plaintiffs. Sometime later the first plaintiff was separated from the second and third plaintiffs, as the latter two were led into a bedroom. The first plaintiff was ordered to lie down and was told not to move or he would be shot. The second plaintiff told the Court that she was also gun butted and the third plaintiff who was with her at that time fainted during the assault. Sometime later, the gang ordered the first plaintiff to the room where the second and third plaintiffs were on the second floor of the lodge, the gang then told the first plaintiff to take the third plaintiff and go to another room leaving the second plaintiff in one room by herself. According to the first and the second plaintiffs, that was when the second plaintiff was raped by three of the men.

8. The plaintiffs were recruited from Mount Hagen towards the end of December, 1998, to manage the lodge. At the time of the robbery, they had been working at the lodge for about five months. Before the first and second plaintiffs took up their jobs at the lodge, the lodge was managed by a Tim Wild. There is evidence from the first plaintiff that when Tim Wild was managing the lodge, he assaulted one of the six men that broke into the lodge on 29 May, 1999, when that man went to the lodge and caused some disturbances.

9. The defendants called two witnesses; one is To’oro Aihi who is the second defendant and the other is Ivoro Eve, who was employed at the lodge at the time of the robbery. On the night of the robbery, it was a full moon and Ivoro Eve was in his Idiba village, which is not far from the lodge. That night, the people of Idiba were having a dance. Before the criminals broke into the lodge, they fired shots, when the people of Idiba heard the gun shots, they fled from the dance and ran into their houses. According to Ivoro Eve the lodge and its premises were in total darkness at that time because the generator which provided power to the lodge was put off at 10.00 pm which was a standing policy of the lodge. He said he was at the Idiba village dance and when he heard the gun shots he and four other men from the village went and hid near the lodge and they could see the robbery taking place clearly. He said he saw two men holding guns and the others were holding bush knives. He confirmed that there were six men, they went through the main gate of the lodge premises then broke the lodge’s main door and went inside the lodge. He saw a number of them coming out of the lodge sometime later with a stereo they stole from the lodge, the men then started drinking the beer they stole from the lodge, they put the stereo on and were dancing. While Ivoro Eve and his friends were watching, he heard screams coming from the lodge, the screams were from a woman, the woman screamed three times and was saying “Ayo mama”

10. The next day, when Ivoro Eve went to work at the lodge, he saw broken glasses and noted that all the beer kept at the bar were stolen together with strong drinks. He also noticed that the first plaintiff’s right side of the face was swollen.

11. The second plaintiff told the Court that after the robbery, she also complained to the defendants about being raped. She and the third plaintiff left for Port Moresby after the robbery. The first plaintiff reported the robbery and rape to the police, the complaint was made through To’oro Aihi in Port Moresby to report to the police.

12. There is conclusive evidence from the affidavits sworn by the first and second plaintiffs that the robbery and rape were reported to the police. The statements they each made to the police are annexed to their respective affidavits. In their statements the first and second plaintiffs also stated that the second plaintiff was raped.

13. In their defence to the alleged rape on the second plaintiff, the defendants argued that there is no medical evidence to corroborate and prove that the second plaintiff was raped. Allegation of rape by the second plaintiff is a complaint of a criminal nature, thus there must be substantive and convincing evidence to prove the claim before she can be awarded damages, see; Papua Club Inc. –v- Nusaum Holding Limited & 5 Others N2603 at pages 94 - 105.

14. From the materials before the Court, I am satisfied that there is substantive and convincing evidence that the second plaintiff was raped, the evidence includes screams of a woman heard by Ivoro Eve coming from the lodge during the robbery. Those screams could only come from the second plaintiff, because she was the only woman that was inside the lodge during the...