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Mapa v Ganabi [2005] PGDC 79; DC336 (19 May 2005)

DC336

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 187 OF 2004

BETWEEN

James Mapa
First Complainant

V

Mathew Ganabi
Second Complainant

Peter Takura
First Defendant

Commissioner of Police
Second Defendant

The Independent State of
Papua New Guinea
Third Defendant

Port Moresby: Bidar, Pm
2005: 21st April & 19th May

Damages - Claim for damages for personal injuries arising out of Police beatings and brutality - Liability - Damages - Requirement to prove damages - Assessment of -

Cases Cited
Livingstone -v- Rawyards Coal (1880) 5 App. Cases 25 at P39.
Peter Wanis -v- Fred Sikiot and the State N1350

Counsel
Complainants appeared in persons.
No appearance by or on behalf of defendants.

DECISION

19th May, 2005

BIDAR PM: This is a claim for damages for personal injures arising and of Police beatings which occurred on 24th December 003 at Doa, Central Province.

On 24th December 2003, Complainants were returning to the city after dropping off a coffin with a dead body at Mekeo area. At Doa Police Station, complainant’s saw cone markers placed on the road and there was no one in sight. It was dark, and complainants drove slowly up the road, hoping to see policemen further up the road. To their surprise some policemen yelled at them from inside the bush and demanded complainants to stop. Complainants feared that those people could be rascals. As they stopped, policemen pulled them out of the vehicle, punched, butted and kicked them all over their bodies until they fell unconscious on the ground.

At the same time, Highway Traffic Police drove up and stopped the policemen from Doa from further beatings and brutality. Police demanded payment of money and complainants gave them K20.00 but no receipt was issued and no reason given for payment of K20.00. Complainants bled and their faces were swollen.

On 25th December 2003, Doctor T. Subindranathan from Port Moresby General Hospital examined the complainant, James Mapa and noted the following injuries:

• Swelling of the nose.
• Bleeding from nostrils and tender jaws.
• No fractures noted when x rayed.
• Treated with analgesics and antibiotics and discharged.
  

Complainant Mathew Ganabi wad examined by Dr. Reia Taufa and following injuries were noted:

• Bruises on face and unable to open his mouth.
• Treated with analgesics and antibiotics.
  

Since no appearance by or on behalf of defendants were entered, liability was not contested. Liability was made out against the defendants.

General Principles on Damages

The general principle is that when a Court is considering whether or not damages should be awarded was stated by Lord Blackburn in Livingstone -v- Rawyards Coal (1880) 5 App. Cases 25 at 39.

"when an injury is to be compensated by damages, in settling the sum of money to be given for....... Damages you should as nearly as possible, get at that sum of money to be given for ...... damages you should as nearly as possible, get at that sum of money which shall put the part who has been injured, or who has suffered, in the same position as would have been if he had not sustained the wrong for which he is now getting compensation..........."

In McGregor on Damages (Sweet & Maxwell, 13th Ed. 1972, London), the learned author puts the same principle in another way at p. 935:

"The plaintiff has the burden of proving both the fact and amount of damages before he can recover substantial damages. This follows from the general rule tht the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms, an essential part of a person’s case the proof of such allegation falls on him. Even if the defendant fails to deny the allegations of damages or suffers default, the plaintiff must still prove his loss."

These principles apply in our jurisdiction by virtue of schedule 2.2 of the Constitution as at Independence on 16th September 1975.

The principle requiring plaintiff to prove his claim was applied in Peter Wanis -v- Fred Sikiot & The State N1350 August 1995, Woods J. said .1.

"While the State (Defendant) has failed to present any evidence disputing the general claim it is still necessary for the plaintiff to produce appropriate evidence before the Court to support the quantum of the claim."

I proceed now to assess damages to be awarded.

Damages

From the statement of claim complainants claim a total of K10,000.00 as damages. James Mapa wad dragged out of the vehicle, punched, kicked and booted suffered bleeding, swollen face and unable to open mouth.

Mathew Ganabi was also pulled out of the vehicle, punched, booted and butted. He suffered swelling and loss of blood and unable to open his mouth. On the next day both complainants sought medical attention and were treated, fortunately, no broken bones were suffered. In all the circumstances, I assess a sum of K3,000.00 for each as general damages, which I award.

As to special damages, complainants paid K50.00 each for medical report which I award sum of K100.00.

I allow interest at the rate of 8% on the whole amount from date of summons to judgement, which calculates at K480.00.

There shall be judgement for complainants in the sum of K6,580.00, which shall be apportioned equally. Complainants shall have their costs paid by defendants.

In Person: Complainant
In Person: Defendant