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Tuwi v Taiya [2010] PGNC 17; N3901 (22 February 2010)

N3901

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 731 OF 2003

BETWEEN

JACKSON TUWI
Plaintiff

AND

KENNY TAIYA & BLACKY KUGLAME
First Defendants

AND

JOSEPH KUPO, COMMISSIONER FOR POLICE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Makail, J
2008: 12thJune &
2010: 22nd February

TORT - Liability - Trespass - Unlawful police assault - Head and facial injuries - Resultant effect of hearing, vision and jaw impairment - 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 - Head and facial injuries - Recent medical evidence of present medical condition - Relevance of - Lack of - General damages - Special damages - Aggravated damages - Exemplary damages - Breaches of constitutional rights.

PRACTICE & PROCEDURE - Pleading of damages - Specific heads of damages - Mandatory - Failure to plead damages - Effect of - No damages awarded - National Court Rules - Order 8, rules 29 & 33.

Cases cited:

Pius Pup -v- Joseph Kupo, Commissioner for Police & The State: WS No 28 of 2002 (Unnumbered & Unreported Judgment of 11th February 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
James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010)
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
James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486

Counsel:

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

JUDGMENT

22nd February, 2010

1. MAKAIL, J: This is a case where the plaintiff, a 35 years old male from Paiakona village in the Tambul District of the Western Highlands Province is suing the defendants for trespass. In the statement of claim endorsed to the writ of summons filed on 7th July 2003, it is alleged that on 13th January 2003, the plaintiff was a crew of a Toyota Coaster bus bearing registration no: P718X traveling from Mt Hagen towards Lae on the Highlands Highway. At Gonbo village near Mindima in Chimbu Province, an unidentified number of policemen with the first defendants unlawfully assaulted him. As a result, he sustained bodily and head injuries. The defendants have generally denied the allegations in their defence filed on 26th August 2003. 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 08th September 2005 and filed on 26th September 2005, (exhibit "P1") and his supplementary affidavit sworn on 21st September 2005 and filed on 26th September 2005, (exhibit "P2") are these: on 13th January 2003, the plaintiff was a crew of a Toyota Coaster bus bearing registration no: P718X ("bus") traveling from Mt Hagen towards Lae on the Highlands Highway. At Gonbo village near Mindima in Chimbu Province, a Toyota ten seater land-cruiser, white in colour was parked on the side of the road. As they were driving up, without warning, it took off by moving onto the road. In order to avoid colliding with it, the driver of the bus turned the bus to the right and overtook the Toyota ten seater land-cruiser.

3. Another Toyota ten seater land-cruiser, bearing registration no: EAD-666, white in colour with the first defendants and some unidentified policemen in it were traveling in the opposite direction and upon realizing that the bus had overtaken the other Toyota ten seater land-cruiser turned around and followed the bus. The first defendant and the other policemen stopped the bus at Gonbo village and the first defendants questioned the driver. In the process they attempted to assault the driver. Upon seeing that, the plaintiff intervened. He asked the first defendants why they wanted to assault the driver and they turned on him. They assaulted him by punching him all over his body with a pistol. They also hit him on his head with a stone and one of them fired a pistol over his head. As a result, he sustained bodily and head injuries.

4. Counsel for the defendants did very little in cross examination of the plaintiff to discredit him as he asked very few questions which did not go to the issue of identification of the first defendants and the assault of the plaintiff. The questions were irrelevant, in my view. Hence, I am left with the unchallenged evidence of the plaintiff and I accept his evidence in relation to how and who assaulted him on that day. I accept that he was assaulted by the first defendants because first, he properly gave the description of the motor vehicle that stopped them as white in colour, bearing a private registration number, EAD-666. Secondly, he saw one of the first defendants holding a gun and fired it over his head, although they were in civilian uniforms. In the circumstances, I am satisfied on the balance of probabilities that the men who assaulted the plaintiff were policemen. They were the first defendants in this case.

5. In relation to whether or not the first defendants were acting within the scope of their employment when they assaulted the plaintiff, I have no doubt in my mind that they were acting within the course of their employment when they assaulted the plaintiff. They were traveling on the road and when they saw the bus over take the other Toyota ten seater land-cruiser, they turned around and followed the bus. They stopped it and in the course of questioning the driver attempted to assault him. When the plaintiff intervened, they assaulted him.

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

Damages

7. In relation to damages, the plaintiff seeks general damages, exemplary damages and special damages including the usual 8% interest and legal costs. It is noted that, he also claims economic loss of K15,000.00 at pp 7 & 8 of his counsel’s written submission although he did not plead 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 11 & 12 of his counsel’s written submission even though he did not plead 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 10 of his counsel’s written submission although he did not plead the details of the alleged breaches in the statement of claim including seeking it in the prayer for relief.

8. 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.

9. First, the claim for economic loss of K15,000.00 at p 9 of the plaintiff’s counsel written submission can also be disposed off quickly because the plaintiff did neither plead it in the statement of claim nor asked for it in the prayer for relief hence, going by the law on pleadings under Order 8, rule 33(g) of the National Court Rules, 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. Secondly, the claim for aggravated damages of K15,000.00 at pp 11 & 12 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 did not seek it in the prayer for relief. Again, going by the law on pleadings under Order 8, rule 29 of the National Court Rules, 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.

10. The third claim of the plaintiff is damages for breaches of Constitutional rights. His counsel makes this claim on his behalf at p 10 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 did not seek 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. For this reason, this claim is dismissed.

11. In relation to the claim for general damages, counsel for the plaintiff submits at p 7 of his written submission that the plaintiff should be awarded K60,000.00. 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, face, eye and jaw as a result of the assault by the first defendants. The residual effects are loss of one tooth, immobility of the jaw and visual and hearing disabilities. He refers to the medical report by Dr Decastro dated 22nd January 2003 and Dr Mckup dated 27th June 2005 marked as annexures "A1" & "A2" to the affidavit of the plaintiff (exhibit "P1") to support his submission for K60,000.00. The defendants’ counsel did not put forward any written submission to assist me in determining an appropriate award despite being directed to do so.

12. As I observed in Pius Pup -v- Joseph Kupo, Commissioner for Police & The State (2010) N3897, Unreported Judgment of 11th February 2010) at p 9:

"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."

13. 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 K60,000.00 for pain and suffering and loss of amenities. 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 -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2001 (Unnumbered & Unreported Judgment of 25th January 2010).

14. In the present case, the first medical report by Dr Decastro dated 22nd January 2003 stated that the plaintiff suffered a 3cm laceration on his head and sublaxation of the right tooth. The doctor awarded 10% loss of use. According to the medical report by Dr Mckup dated 27th June 2005, the plaintiff suffered the following injuries from the assault:

"Our Examination of the said Jackson Tuwi shows him to have arthritis of his jaws. Visual impairment of his left eye at 18/6 and deformed loss of hearing in the Right Ear Drum. Old performed Ear Drum is visible.

Teeth/Jaws - loss of his right upper premolar teethes (sic).

...............

There is gross impairment of jaw function. Eye function and hearing losses to his beating."

15. In my view, the description of the injuries by Dr Decastro and Dr Mckup is consistent with the plaintiff’s description of his own injuries suffered from the assault. However, there is no further or recent medical evidence of the present medical condition of the plaintiff. I said in Pius Pup’s case (supra):

"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?"

16. The only recent evidence of the plaintiff’s medical condition comes from the medical report of Dr Mckup of some four and a half years ago. Based on this medical report, I find that the plaintiff suffered injuries to his head, face, eyes, ears and jaw, resulting in hearing, vision and jaw problem. I am also satisfied that he suffered great pain at the time of the assault. But I am not sure of the extent of the hearing, vision and jaw impairment as there is no evidence to show their extent. 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 suffered head and facial injuries resulting in hearing, vision and jaw impairment.

17. A review of past awards in cases of police assault and brutality injuries is relevant. The plaintiffs in James Gunambo & Anor (supra) were awarded K18,000.00 as general damages for 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 for the second plaintiff for facial and bodily injuries with some evidence of post concussion syndrome. The awards were high because it was considered that the injuries were serious. The plaintiffs suffered permanent disabilities. In Desmond Huaimbukie & Ors -v- James Baugen & The State (2004) N2589, 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.

18. The plaintiff in George Kala -v- Joseph Kupo as Commissioner of Police & The State (2009) N3677, was awarded K5,000.00 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 with no permanent injuries. In the case of Jack Topo -v- Kelly Kaman & The State (2009) 3773, the plaintiff was awarded K5,000.00 as general damages for facial and bodily injuries suffered from unlawful assault by members of the police force at Nondugl Police Station on 31st August 2000.

19. In the recent case of Pius Pup (supra), the plaintiff was awarded K6,000.00 as general damages for bodily and head injuries with no permanent injuries suffered from unlawful assault by policemen from Tambul Police Station at Murmur pass in the Western Highlands Province on 13th June 1997.In my view, the injuries suffered by the plaintiffs in the cases of George Kala (supra), Jack Topo (supra) and Pius Pup (supra) are not as serious as those in this case. That means, the award in this case will be higher than the awards in those cases. And so, taking into account the type of injuries suffered by the plaintiff with some evidence of hearing, vision and jaw impairment and the awards in past similar cases, including inflation, I have decided to award K12,000.00 because it is a reasonable and fair amount to compensate the plaintiff for the pain and suffering and loss of amenities and I so order.

20. The next head of damages is special damages. The plaintiff did plead the particulars of this claim at paragraph 10 of the statement of claim as required by Order 8, rule 33(g) of the National Court Rules. Thus, the defendants have been put on notice of this claim and I find that the claim is properly before the Court for consideration. Counsel for the plaintiff submits at p 10 of his written submission that the Court should award K440.00 for special damages. The amount comprises of K120.00 for six trips to Kundiawa General Hospital for medical treatment, K100.00 for food during those trips and K220.00 for payment of medical fees and reports.

21. I accept that it would cost money to obtain medical treatment, especially when the hospital is far away from the person’s house or village. One would spend money on transportation, food and accommodation including medical fees. In the present case, I accept that the plaintiff incurred costs during the period he sought medical treatment for his injuries at Kundiawa General Hospital. The proposed amount of K440.00 is not only reasonable but also supported by evidence in so far as the medical costs is concerned as there are receipts of payment showing that the plaintiff spent K220.00 for medical reports: see annexure "A" to the supplementary affidavit of the plaintiff, (exhibit "P2"). For these reasons, I award K440.00.

22. Finally, in relation to the claim of exemplary damages, I am not satisfied that the third defendant should be ordered to pay exemplary damages for the unlawful actions of the first defendants. 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. I followed that decision in my recent decision in Pius Pup’s case (supra) which was a case where the plaintiff was unable to identify and name individual policemen in the action. In my opinion, the facts of this case do not warrant an award of exemplary damages against the third defendant because although the assault on the plaintiff appeared brutal and severe, it was a one off incident.

23. In this case, the plaintiff has identified and named the policemen who assaulted him, so any award exemplary damages should be awarded against them. In deciding the amount to be awarded as exemplary damages, I have had recourse to my own judgment in James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486, where I awarded K2,000.00 as exemplary damages against the first and second defendants who were members of the police force. In that case, the first and second defendants confiscated the plaintiffs’ PMV licence and a driver’s licence without any lawful reason. I found their actions unlawful and ordered them to pay exemplary damages. I awarded the same amount in James Gunambo’s case (supra) and Pius Pup’s case (supra). In the circumstances, I award K2,000.00 as exemplary damages which shall be personally paid by each of the first defendants.

24. 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. 8% interest on general damages and special damages of K12,440.00 for 2,417 days at a daily rate of K 2.73 equates to K6,598.41. I award this amount. 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 K12,000.00 as general damages for pain and suffering and loss of amenities.

3. The defendants shall pay K440.00 as special damages.

4. The first defendants shall each personally pay K2,000.00 to the plaintiff as exemplary damages.

5. The defendants shall pay 8% interest from the date of issue of writ of summons of 7th July 2003 to the date of judgment of 22nd February 2010 in the sum of K6,598.41.

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

7. 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