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More v Tokam [1997] PGNC 115; N1645 (26 September 1997)

Unreported National Court Decisions

N1645

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 1168 OF 1995
BETWEEN: ANDALE MORE & MANIS ANDALE
PLAINTIFFS
AND: HENRY TOKAM
FIRST DEFENDANT
AND: THE STATE
SECOND DEFENDANT

Mount Hagen

Injia J
3 February 1997
26 September 1997

DAMAGES - Exemplary damages - Discretion to award - Policeman shot deceased in tribal fighting zone - Deceased hiding in bush and defending clan territory against enemy clansmen - No exemplary damages payable.

DAMAGES - Dependency loss - Deceased an infant under 21 years of age - Parents of infant claiming dependency loss - Whether parents of infant may recover - Frauds and Limitation Act 1988, S. 21 (a).

Cases Cited

Abel Tomba -v- The State SC 578 dated 7 April 1997.

Counsel

P. Dowa for the Plafs

Mrs PMrs P. Mogish for the Defendants

26 September 1997

INJIA J: This is a trial on assessment of damages followingy of Default Judgment against the Defendants. The Plaintiffntiffs’ action is for damages for the death of the deceased, one Andale Tagola, a young man aged 18 years old who was shot dead by Wabag Police on 25 November 1994 at Kusi Creek, Laiagam in the Enga Province. The action is brought by the customary representatives of the deceased’s estate, namely the deceased’s parents.

The facts as disclosed by the affidavit evidence produced by the Plaintiff is that immediately prior to 25 November 1994, there had been a fierce tribal fight between the Mulyapin and Aiyakan clans, both of the Tangula tribe. On the 25 November 1994, they had stopped fighting and convened a meeting to discuss peace. They had invited policemen from Wabag to participate. The Police from Wabag arrived in police vehicles, stopped and talked to the Mulapini clan first at their village. After talking to them, the police drove up to Kusi village belonging to the Aiyakane clan (enemy clan). At that time, according to the evidence of Puiben Punin, the deceased and his clansmen were hiding in the bush “guarding their territory” against expected raids by the enemy Mulapin clansmen. On the way, a policeman fired a high powered gun towards a group of 3 men sitting on the ridges of the Kusi Creek about 1.5 km from the fighting zone. The three men ran away but one of them fell down about 2m away from where he was shot at. Two of the men there were identified as the deceased and Punakan Lugan. It was the deceased who was shot. Punaka was also shot on the right arm by a bullet.

These evidence in my view, is relevant for the purpose of deciding whether damages should be awarded, in particular, exemplary damages:

The Defendants have not produced any evidence to counter the evidence of the Plaintiff.

As far as liability of the Defendants is concerned, this was settled by entry of default judgment which had the effect of settling the issue of liability in favour of the Plaintiffs. The issue of liability generally as well as vicarious liability was settled in favour of the Plaintiffs as against the Defendants. Counsel for the Defendants has gone to great depths in submitting that the State should not be held liable vicariously or otherwise. In my view, these arguments are not open to the Defendants as a result of the default judgment.

DEPENDENCY LOSS

The Plaintiffs are entitled to damages in the form of dependency loss. In the Statement of Claim, the particulars pertinent to dependency loss are pleaded in para. 6-7. The Plaintiff’s age is stated as 18 years old and a church youth leader. He “provided for the Plaintiffs, his mother and other members of the family as the only son, their daily provisions in food, money, accommodation and company as their son and brother”. The deceased’s death has resulted in loss of those provisions.

By affidavits sworn by the deceased’s father Andale More and mother Damis Andale, they say they were dependant on the deceased for support. They do not give particulars of their own respective ages although they do say the deceased was aged about 18 years old at the time of his death. They then go on to provide details of the deceased’s village economic activities in money value terms.

In the written submission filed by the Plaintiffs’ lawyer, a claim for dependency loss is made for both parents on the basis that the father was 50 years old and mother was 45 years old. In my view, there is no evidence to support these respective ages. In terms of dependency loss in terms of years, it is unknown. Also in a case such as the present where parents of children under the legal maturity age of 21 years claim that they were dependent on the child, it is imperative that they produce evidence of their respective ages.

In the Writ, the Plaintiffs did not plead the age of the mother whilst the father’s age is pleaded as 50 years of age. But in respect of the father, pleading of age is not the evidence.

Also in the Writ, the full particulars of the economic support lost by the parents is not pleaded: see S. 32 of Wrongs Act (Ch. No. 295).

In my view, no evidence may be permitted where there are no specific pleadings as required by S. 32 of the Wrongs Act. Even if such evidence were allowed, the evidence lacks particularity as to age of the dependants from which the Court could determine whether the parents were indeed dependant on their young son for support.

Alternatively, the evidence is that the deceased was not of full capacity to support anyone economically in that he was an infant himself. The age of the deceased is given as 18 years old. As the medical report supports this age, I accept that he was 18 years old. Therefore, he was still under the legal maturity age of 21 years under S. 21(a) of Frauds and the Limitations Act 1988 and as such, whatever economic activities he engaged in would have been to contribute to his own maintenance. He would have been a dependant himself at the most and in no position to support anyone else, including his parents.

For these reasons, I would not allow any damages for dependency loss.

FUNERAL AND DISINFECTANT COST

The Plaintiff claims K2,000.00 for “funeral and disinfectant” costs. There is no evidence to support this claim. However, I allow a nominal sum of K200.00 on the basis that there would have been some nominal costs incurred in expenses directly associated with the funeral and burial costs such as cost of coffin: see similar awards I made in WS 115/93 Yamane & Ors -v- The State & Anor, Unrep. judgment dated 9/5/97.

SOLATIUM PAYMENT

I allow K600.00 for solatium payment under S. 29 of the Wrongs Act on the basis that the deceased was legally an infant child of the Plaintiffs.

ESTATE CLAIM

I award the conventional sum of K1,500.00 for the estate claim.

EXEMPLARY DAMAGES

The Plaintiff claims exemplary damages in the sum of K40,000.00 on the basis that “the actions of the police eventuated while executing their official duties as peace keeping officers when peace was to be negotiated between the two warring tribes. In the circumstances the use of a gun upon harmless unprovoking and innocent group of people was within the First Defendant’s scope of employment” (para. 22 of Plaintiffs’ lawyer’s written submission) and that the killing was “unwarranted” (para. 24 of Plaintiffs’ lawyer’s written submission).

The award of exemplary damages in this kind of action is discretionary. The Plaintiff’s lawyer has referred me to earlier decisions of the National Court on exemplary damages but the recent Supreme Court case of Abel Tomba -v- The State, Unrep. Supreme Court judgment SC 578 dated 7 April 1997 is overriding. As this is a recent case which counsels appearing before the National Court here at Mt. Hagen in numerous cases do not appear to be aware of, I set out the relevant parts of the judgment in some detail. One of the issues considered in that case was “whether whenever there is a claim for exemplary damages arising from an act of policemen even if the act is so excessive, arbitrary and punishable, which is not officially sanctioned by the State policy, directives, or by a statute, the State must pay for it” (per Los, J. at p. 14-15). The majority comprising of Los, J. and Salika, J. were of the view that the Court when exercising its discretion is to be guided by the following principles:

1. Exemplary damages followsdaward of ordinary (general) damages.

2. ټ&#W60; then the acti actions oflicemes bemere ompliof a tory provision, the individual policeman,eman, if i if identidentified,fied, and and sued,sued, is personally liable to pay exemplarages.Statenly liay liable tble to payo pay exemplary damages for (technical) breaches or indiscretions committed in the execution of the policeman’s lawful functions, statutory or otherwise. Los, J. gives two good examples of this at p. 19-20 as follows:

“I consider that Section 18 of the Search Act supports the view that the State cannot be made totally and blindly liable for an act of a policeman. The Section says:

“For the purpose of any civil proceeding, where the making of a search would otherwise be within the scope of a person’s employment, the mere non-compliance by an employee with a provision of this Act does not, of itself take any act of employee, committed during the course of the search, outside the scope of his employment”. [Underline mine for emphasis]

It is my view that Section 18 envisages that certain acts that go beyond mere breach of any of the provisions of the Search Act the State as the employer cannot be liable beyond liability for general damages. For example a policeman stops a person and searches him knowing very well there exists no reasonable ground that the person may have in possession of stolen goods. He does it with other motives. Application of Section 4(4) of the Act may give a good example. Under Sub-sec. (4) where a male police officer has to conduct a search upon a female, it is mandatory that an adult female be present. But if a policeman because of time constraint or because no female adult is nearby conducts the search upon the female, he has committed a technical breach. The State has to be vicariously liable for general damages as well as for any punitive damages that may be awarded. On the other hand a policeman sees a female during a search that she needs to be searched but he wants to search her alone deliberately and orders her to take all the clothes of, and he fondles her a bit. This in my view is beyond mere non-compliance with Sub-s. 4. The State cannot be vicariously liable for any punitive damages for such an act. Further example may be shown for breach of Section 12. This Section makes it mandatory to register all properties seized by a policeman. After a raid a group of policemen may come back with a number of goods and just as they are just about to register them, a senior officer orders them to conduct another raid immediately. They do so and return with more goods and reach the police station at midnight. They are so tired that they go to sleep. In the morning they return to register the goods but all the goods get mixed up with the goods seized in the subsequent raid. some get lost. The State must be vicariously liable for the loss of the goods as well as for exemplary damages. However, if the same group of policemen returned to the station and did not register the goods deliberately so that the owners could not get them back, it is my view that the State could only be liable for failing to register thereby causing the properties to be lost. For the purpose of exemplary damages the State cannot be liable. The rationale is that exemplary damage is penal in nature. The State through legislative process has given strict standards and procedures and rules for the policemen to operate under. If they deliberately faulter, they have to answer for their fault individually.” [My underlining]

The principles to be deduced from the above two examples and the case of David Waii Kofewi -v- State [1983] PNGLR 449, is, per Los, J. at p. 21-22:

“It is my view therefore that apart from considering whether the circumstances warrant award of exemplary damages and what amount is reasonable, the court also has a discretion to refuse payment on the grounds that the acts complained of were so excessive and beyond all expectations that required under statutes, rules, and standards that the State should not be ordered to try. (sic) It is true as the Supreme Court so explicitly said in Kofewei’s case at p. 10 that the State is the embodiment of the people and the power the State exercises belongs to the people. When police exercise powers of search and arrest they do that on behalf of the people. The people must stand ready to support them for any breaches or indiscretions. But, how can the people be “punished” by ordering them to pay exemplary damages when they have done enough through legislative process by passing laws, rules and procedures under which the police must operate yet they deliberately go beyond all expectations to commit wrongs? These considerations in my view must come into play when a court is exercising its discretion. If there is evidence that the State is failing to properly train, fund and generally facilitate its servants performance then it is a relevant consideration whether the State should pay for exemplary damages .....

..... Therefore the argument that the State as the embodiment of the people must be penalised for all the acts of the policemen who enjoy assaulting and injuring other people and or destroying their properties cannot be supported.”

3. & P60; Policy considerations: Los, J. at p. 23 says:

“There are also policy considerations that the courts must bear in mind when they are exercising their discretionary powers pertaining to awf exey dam As exemplarmplary damy damage iage is intended to punish and hence serves as moral retribution and deterrence for oppressive and arbitrary acts, should the four million people suffer for the acts of a handful of policemen? In an abstract way it may be a lesson for the leadership of the Police Force so that they can take a hard look at training and instilling discipline in the membership of the Force. But the State cannot go on spending money on paying damages and exemplary damages which are unplanned expenditures. The State has more important obligation which concerns the welfare and interest of the majority of the people - that is a planned expenditure to achieve “equalisation of services in all parts of the country” (National Goal Number 2 paragraph 4 of the Constitution). A multiplicity of demands upon the State to pay exemplary damages arising from unruly behaviour of a few policemen may force the State to make unconstitutional reduction of the budget appropriated by the National Parliament for different areas and functions of the government in the country as were discovered in Special Reference 1 of 1990 (1990) PNGLR 532 and in Re: Criminal Circuits In Eastern Highlands (1990) PNGLR 82.”

When considering the issue of whether the State should be vicariously liable to pay ordinary damages and exemplary damages for torts committed by policemen, in such cases as the present one, S. 1(4) of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297) is significant. Section 1(4) provides:

“(4) func aresconfeconferred ored or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government. [My underlining]

In the present case, the facts show that the policemen were called into the area to negotiate peace among warring clans. There had been fierce fighting in the area only recently. They were lawfully present at the tribal fighting zone appropriately and lawfully armed to quell any trouble that might arise. As policemen, they were empowered to use all necessary or reasonable force to prevent trouble. They talked with one of the warring sides in the fighting zone without incident. When the police party came to the deceased’s territory, the policeman concerned saw it necessary to use the high powered firearm against the group of men hiding on the ridges of the Kusi Creek on the watch for their enemy clansmen and guarding their territory. This policeman in his deliberate judgment felt that he had to use the firearm in his lawful possession and control in the manner he did in a situation which was highly volatile and tense. His actions therefore squarely falls within the scope of his authorised duties for which neither the State nor the First Defendant nor the particular unidentified policeman who fired the fatal shot should be penalised by exemplary damages. I am inclined to pay deference to the policeman’s judgment on the field that day as to why he saw it necessary to use the firearm in the manner he did, as he was so authorised by the government by virtue of his position as a policeman.

For these reasons, I refuse to award exemplary damages.

INTEREST

I award interest at 8% on the total amount of K2,300.00 from the date of filing the Writ (12/12/95) to date of judgment (26/9/97) which I calculate at K337.75.

SUMMARY OF AWARDS

I award the total sum of K2,580.78 comprised as follows:

COSTS

I award costs to the Plaintiffs.

Lawyer for the Plaintiffs: Paulus M. Dowa Lawyers

Lawyer for the Defendants: Solicitor General