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Pup v Kupo [2010] PGNC 11; N3897 (11 February 2010)

N3897

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 28 OF 2002

BETWEEN

PIUS PUP
Plaintiff

AND

JOSEPH KUPO,
COMMISSIONER FOR POLICE
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail, J
2008: 18th June &
2010: 11th February

TORT - Liability - Trespass to person - Unlawful assault - Whether policemen committed assault - Identification of - Whether policemen acting within scope of employment - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1.

DAMAGES - Assessment of damages - Physical injuries - Recent medical evidence of present medical condition - Relevance of - Lack of - General damages - Special damages - Aggravated damages - Exemplary damages - Breaches of constitutional rights.

PLEADINGS - Pleading of damages - Specific heads of damages - Mandatory - Failure to plead damages - Effect of - No damages awarded - National Court Rules - Order 8, rule 33.

Cases cited:

James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010)
Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364
Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681
Pius Pup -v- Joseph Kupo, Commissioner for Police & The State: WS No 28 of 2002 (Unnumbered & Unreported Judgment of 18th June 2008)
Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589
George Kala -v- Joseph Kupo as Commissioner of Police & The State (2009) N3677
Jack Topo -v- Kelly Kaman & The State (2009) N3773
Abel Tomba -v- The State (1997) SC518

Counsel:

Mr Peter Kak, for the Plaintiff
Mr Gaure Odu, for the Defendants

JUDGMENT

11th February, 2010

1. MAKAIL, J: The plaintiff is a 37 years old male from Paiakona village in the Tambul District of the Western Highlands Province and sues the defendants for trespass. In the statement of claim endorsed to the writ of summons filed on 11th January 2002, he alleges that on the night of 13th June 1997, an unspecified number of policemen based at Tambul Police Station unlawfully assaulted him by hitting him with gun butts on his head, hands and chest. As a result, he suffered bodily injuries, including loss of memory and headaches. The defendants have generally denied the allegations in their defence filed on 28th February 2002. Trial was conducted to determine liability and also assessment of damages.

Liability

2. Despite the defendants denying liability, they have not produced evidence to establish their defence at trial. Hence, the un-controverted evidence of the plaintiff in his affidavit sworn on 22nd September 2005 and filed on 4th October 2005, (exhibit "P1") and corroborated by witness, one Joseph Wanta Wak in his affidavit sworn on 23rd February 2006 and filed on 28th February 2006, (exhibit "P2") are these: during the 1997 National General Elections, the plaintiff was the Presiding Officer for Paiakona No 2 village in the Tambul-Nebliyer Open Electorate. On 13th June 1997, during the day, he attended an election pre-training related course at Tambul District Office. After the course, he was returning to his village in a motor vehicle with some people. At about half past eight that night, they arrived at Murmur pass and were stopped by policemen at a road block.

3. As soon as the motor vehicle stopped, another motor vehicle, blue in colour and had blue lights on its cabin pulled up from behind them and an unspecified number of men wearing police uniforms and armed with guns got out and ordered them to lie down. They did so. The men started assaulting them. As for the plaintiff, these men assaulted him by hitting him on his head, hands and chest with gun butts. He suffered cuts to his head, hands and a bruised chest. He bled profusely and fell unconscious. The next day, he sought medical treatment for his injuries.

4. Counsel for the defendants attempted to establish in cross examination of the plaintiff that the plaintiff could have mistaken his assailants as policemen as it was night time and the visibility was not clear for him to see clearly these men to be able to say that they were policemen. But I am not persuaded that the plaintiff had mistaken his assailants. I believe and accept his evidence that he was assaulted by policemen because first, he properly gave the description of the motor vehicle that pulled up behind them. He said it was blue in color and had blue lights on its cabin, although he did not see its registration number. This is quite understandable because it was dark and that the registration number plate is usually small in size which would have made it difficult for him to read it. Secondly, he saw the men wearing police uniforms and had guns.

5. Thirdly, the motor vehicle came from Tambul direction which made him believe that it was policemen from Tambul Police Station. These men came in the blue coloured motor vehicle and joined those men standing on the road at the road block. The plaintiff’s evidence has been corroborated by the witness, Joseph Wanta Wak. In my view, the evidence of the plaintiff and Mr Wak sufficiently identifies the assailants as policemen.

6. In accepting the evidence of the plaintiff and Mr Wak of what had happened at that time, I reject and do not rely on a series of letters marked as annexure "C" to the affidavit of the plaintiff, (exhibit "P1"), namely, an undated letter from Billy Kombel to PPC WHP, letter from Billy Kombel to PPC Mt Hagen Police Station dated 21st June 2001, letter from Chief Sergeant Peter Wani to Officer In Charge, Public Complaints dated 24th July 2000, letter from Moke Kunjil to Department of Police dated 18th January 2001, Councilor Paul Nema of Mt Giluwe LLG to Provincial Police Commander, Highlands Region dated 10th May 2001, letter from Jack Karali of Department of Western Highlands to Provincial Labour Officer dated 14th July 1998 and letter from Benny Laki to Provincial Labour Officer dated 28th July 1997 as they are hearsay. This means, the determination of liability is based solely on the evidence of the plaintiff and Mr Wak.

7. The other reason for me to find that it was the policemen who assaulted the plaintiff is that, it was neither suggested by the defendants’ counsel nor was there any evidence led to establish that the assailants were not policemen. In the circumstances, I am satisfied on the balance of probabilities that the men who assaulted the plaintiff were policemen.

8. In relation to whether or not the policemen were acting within the scope of their employment when they assaulted the plaintiff, the question to be asked is; why would they be setting up a road block at Murmur pass at half past eight in the night? That is an odd time to do such a thing but surely, there must be a reason for doing that and generally speaking, policemen do not go about setting up road blocks on their own volition. There must be a reason for doing so and that instructions must come from their superiors to do so. In this case, it can be safely inferred from the fact that the policemen set up a road block at that material time, especially during the National General Elections period to maintain law and order in that area. Hence, it would not be wrong to infer and conclude that they were acting within the scope of their employment at that material time.

9. I am therefore, satisfied on the balance of probabilities that the policemen were acting within the scope of their employment when they assaulted the plaintiff. I find the second defendant as the principal and employer of these policemen vicariously liable under the principles of vicarious liability under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

Damages

10. In relation to damages, the plaintiff seeks general damages and exemplary damages including the usual 8% interest and legal costs. It is also noted that he also gave evidence of special damages despite not pleading it in the statement of claim. It is further noted, he also claims economic loss of K15,000.00 at p 8 of his counsel’s written submission although he has not pleaded it in the statement of claim and asked for it in the prayer for relief. It is further noted that he claims aggravated damages of K15,000.00 at pp 9 & 10 of his counsel’s written submission even though he has not pleaded it in the statement of claim and asked for it in the prayer for relief. It is finally noted that he also claims damages for breaches of his Constitutional rights of K3,000.00 at p 9 of his counsel’s written submission although he has not pleaded the details of the alleged breaches in the statement of claim including seeking it in the prayer for relief.

11. It is trite law that, in assessment of damages, the plaintiff bears the onus of proving his or her damages. It is also trite law that only damages that are pleaded may be claimed upon proof by appropriate evidence. In other words, it is mandatory to plead the specific heads of damages in order to maintain and establish them at trial. A failure to plead them will result in no awards. First, the claim for special damages can be disposed off quickly because since the plaintiff did not plead and particularize it in the statement of claim to put the defendants on notice that he is claiming special damages against them, I would dismiss it for these reasons: see Order 8, rule 33(g) of the National Court Rules and also my recent judgment of James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010).

12. Secondly, the claim for economic loss of K15,000.00 at p 8 of the plaintiff’s counsel written submissions can also be disposed off quickly because the plaintiff has neither pleaded it in the statement of claim nor asked for it in the prayer for relief hence, going by the law on pleadings, he is not entitled to lead evidence and make submissions on it. He has caught the defendants and of course, the Court by surprise by making this new claim. For this reason, this claim is dismissed. Thirdly, the claim for aggravated damages of K15,000.00 at pp 9 & 10 of the plaintiff’s counsel written submissions can also be disposed off quickly because the plaintiff did not plead it in the statement of claim and also has not sought it in the prayer for relief. Going by the law on pleadings, he is not entitled to lead evidence and make submissions on it as neither the defendants nor the Court have been made aware of it. For this reason, this claim is dismissed.

13. The fourth claim of the plaintiff is damages for breaches of Constitutional rights. His counsel makes this claim on his behalf at p 9 of his written submission in the sum of K3,000.00. Again, this is one of those claims which can be disposed off quickly because the plaintiff did not plead it in the statement of claim and also has not sought it in the prayer for relief. To be specific, I cannot find anywhere in the statement of claim the plaintiff pleading the relevant provisions of the Constitution which he claims have been breached by the defendants.

14. This case is different to the case of James Gunambo & Anor (supra) where there were some pleadings in relation to allegations of the breaches of Constitutional rights of the plaintiffs which formed the basis for an award of K2,000.00 each. There is nothing of that sort here hence, going by the law on pleadings, he is not entitled to lead evidence and make submissions on it as neither the defendants nor the Court have been made aware of such a claim. For this reason, this claim is dismissed.

15. In relation to the claim for general damages, counsel for the plaintiff submits at p 6 of his written submission that the plaintiff should be awarded K55,000.00. He submits that this amount is reasonable and fair in the circumstances of the case because the plaintiff has suffered serious injuries to his head, hands and chest as a result of the assault by the policemen. The residual effects are scars on his head and right chest and visual and hearing disabilities. He refers to the medical report by Dr Boris dated 30th June 1997 marked as annexure "A" to the affidavit of the plaintiff (exhibit "P1") to support his submission for K55,000.00. The defendants’ counsel has not put in forward any written submission to assist me in determining an appropriate award despite being directed to do so.

16. The absence of defendants counsel’s written submission is not only a breach of counsel’s duty to the Court in so far as assisting the Court is concern, but can also prove fatal to the defendants’ case because the Court would not have the benefit of the defendants’ submission to guide it in its deliberation. In the absence of any reply submission, there is a tendency that the Court may arrive at an award that may be too excessive for the defendants. Such situation could be or could have been avoided if counsel had or should have provided one. Having made these observations, I have considered the written submissions of the plaintiff’s counsel and am not persuaded that the plaintiff should be awarded K55,000.00 for pain and suffering and loss of amenities.

17. It has been said that general damages is intended to compensate plaintiffs for the pain and suffering, humiliation, distress and inconvenience caused by the unlawful actions of defendants. Plaintiffs who suffer bodily injuries have to be compensated for the shock and distress caused by the assaults. The purpose of an award of general damages is to compensate a person; to put that person as far as possible in the same position he or she could have been had he or she not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty: see Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364; Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681 and James Gunambo & Anor’s case (supra).

18. In the present case, according to the medical report of Dr Boris dated 30th June 1997 which was admitted into evidence by consent and may be found at annexure "A" to the affidavit of the plaintiff (exhibit "P1"), the plaintiff suffered the following injuries from the assault:

"bruise injuries.

Occiputal part of scalp diameter in advanced stage.

(In the middle scar, 2 cm length) bruise - 7 cm in diameter at the right back chest.

Healing laceration - 1.5 cm in diameter at the left palm."

19. In my view, the description of the injuries by Dr Boris is consistent with the plaintiff’s description of injuries suffered by him from the assault. However, there is no further or recent medical evidence of the present medical condition of the plaintiff although it is noted that the plaintiff sought to tender an affidavit of Dr John McKup sworn and filed on 17th June 2008 at trial without the deponent being present for cross examination by defendants’ counsel. I ruled against the tendering of the affidavit because it was short served on the defendants, thus, giving them no opportunity to take proper instructions to reply to it and also to give notice to the plaintiff’s lawyers to produce this witness for cross examination at trial. Further, that it would deny the defendants the right to test the veracity of this witness’s evidence in cross examination if he was not produced: see my ruling in Pius Pup -v- Joseph Kupo, Commissioner for Police & The State: WS No 28 of 2002 (Unnumbered & Unreported Judgment of 18th June 2008).

20. Dr McKup’s evidence or evidence of any other doctor for that matter, of the present medical condition of the plaintiff is relevant and crucial to establish whether the plaintiff suffers from any permanent disability or recurring medical concerns since the assault. Such evidence would give an updated report of the plaintiff’s medical condition, that is, whether it has improved or deteriorated. Since the affidavit of Dr McKup has been rejected, I am left with no other evidence of the plaintiff’s present medical condition even though the plaintiff says that he is suffering from memory loss and headaches. How can I be certain that he is indeed suffering from memory loss and headaches including any long term disabilities?

21. The only evidence of the plaintiff’s medical condition comes from the medical report of Dr Boris of some 12 years ago. Based on this medical report, I find that the plaintiff suffered injuries to his head, hands and chest. I am also satisfied that the injuries have left scars on his head and right chest. Further, I am satisfied that he suffered great pain at the time of the assault. But I am not satisfied that he suffered memory loss and headaches including permanent disabilities as there is no evidence to verify these injuries and disabilities. The lack of further medical evidence will significantly impact on the award of damages. At the end of the day, I must find that the plaintiff only suffered head, hands and chest injuries, with resultant effect of scars on his head and chest and no permanent disabilities.

22. And when I compare these injuries with the injuries suffered by plaintiffs in past similar cases of James Gunambo & Anor (supra) where I awarded K18,000.00 as general damages to the first plaintiff for facial and bodily injuries with some evidence of post concussion syndrome and groin injury resulting in bloody urine and K14,000.00 as general damages to the second plaintiff for facial and bodily injuries with some evidence of post concussion syndrome, and Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589, where Kandakasi, J awarded general damages between K4,000.00 and K8,000.00 to the plaintiffs for severe injuries, namely, broken lips, mouth, swollen faces and body as a result of assaults by members of the police force based at Yangoru Rural Police Station in the East Sepik Province on 12th December 2001, I can safely conclude that this case is not as serious as those cases.

23. It should be also noted that given the serious injuries leading to permanent disabilities in the case of James Gunambo & Anor (supra), the awards were K14,000.00 and K18,000.00. As I said, this case is not that serious, hence the award of damages in my opinion, will be somewhere between K5,000.00 and K10,000.00. In this respect, I think this case comes close to the case of George Kala -v- Joseph Kupo as Commissioner of Police & The State (2009) N3677, where I awarded K5,000.00 to the plaintiff as general damages for pain and suffering following repeated assaults by members of the police force on the Highlands highway near Mt Hagen and Mt Hagen Police Station on 21st December 1999. The plaintiff suffered swelling and bruises to his face and body.

24. It also comes closer to an earlier case which I decided and that is the case of Jack Topo -v- Kelly Kaman & The State (2009) 3773, where I also awarded K5,000.00 as general damages for facial and bodily injuries suffered by the plaintiff from unlawful assault by members of the police force at Nondugl Police Station on 31st August 2000. And so, taking into account the type of injuries suffered by the plaintiff with no evidence of any permanent disabilities except the scars on the head and chest, and the awards in past similar cases, I have reached a decision that K6,000.00 is reasonable and fair amount to award to compensate the plaintiff for the pain and suffering and loss of amenities and I so order.

25. Finally, in relation to the claim of exemplary damages, I am not satisfied that the defendants, more so, the second defendant should be ordered to pay exemplary damages for unlawful actions of the unspecified or unidentified policemen. I stick by the decision in Abel Tomba -v- The State (1997) SC518, where the Supreme Court was reluctant to award exemplary damages against the State for abuse of power by members of the disciplined forces. In my opinion, the facts of this case do not warrant an award of exemplary damages because the assault is not so severe and continuing and further, no individual policemen have been named in the proceeding to enable the Court to make an order against them. For these reasons, I dismiss this claim.

26. I shall award interest at 8% from the date of the issue of the writ of summons to the date of judgment today pursuant to section 1 of the Judicial Proceedings (Interest on Debts & Damages) Act, Ch 52. I do so because it is only fair that the plaintiff be compensated for being kept out of the money. Eight percent ( 8%) interest on general damages of K6,000.00 for 2,581 days at a daily rate of K 1.31 equates to K3,381.11. I award this amount.

27. I also order the defendants to pay the plaintiff’s legal costs of the proceeding to be taxed if it is not agreed.

Orders

The final orders of the Court are:

1. Liability is entered against the defendants.

2. The defendants shall pay K6,000.00 as general damages for pain and suffering and loss of amenities.

3. The defendants shall pay 8% interest from the date of issue of writ of summons of 11th January 2002 to the date of judgment of 11th February 2010 in the sum of K3,381.11.

4. The defendants shall the plaintiff’s legal costs which shall be taxed if it is not agreed.

5. The time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

_________________________________
Paulus Dowa Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the Defendants