N5244

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 329 2009

BETWEEN

RUBEN BORNRIGHT GABIEN
First Plaintiff

AND

VINCENT GABIEN BY HIS NEXT FRIEND RUBEN BORNRIGHT GABIEN
Second Plaintiff

AND

SENIOR SERGEANT WATKINS TOLOUP
First Defendant

AND

SENIOR SERGEANT ROBERT WOLO
Second Defendant

AND

GARI BAKI
COMMISSIONER OF POLICE
Third defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Kimbe: Kawi J
2012: 25th, 26th & 28th February

CONSTITUTIONAL LAW- severe breach of Constitutional rights by policemen involved in police operations-Police operations mounted to hunt for and capture notorious bank robber-plaintiffs severely beaten up during this police operations-first plaintiff lost for lower central teeth as a result of beating received from police to the lower jaw-also gun butted using police issued riffles to lower jaw.- Second plaintiff had his toe smashed with a rock against another rock- toe nail came off the skin-severe beatings amounted to serious violations of constitutional rights.

DAMAGES - Award of Damages- breach of constitutional rights to be treated separately from general damages- general damages are to compensate for pain and suffering and loss of functionality of four lost teeth as well as toe nail - Exemplary damages to be paid for by the State. 

Facts:

The plaintiff, a father and his son filed legal proceedings against Police for serious breaches of their constitutional rights. They were picked up by Police at their home and taken to an isolated spot where both were severely beaten up. The father (first plaintiff) was gun butted and punched several times in his lower jaw. As a result of these severe punches and gun butting, he lost four lower central teeth. These required full extraction. The son (second Plaintiff) on the other hand was ordered by the police aggressors to rest his left foot on a boulder lying beside the road. One of the policemen picked up another boulder sized black river stone, and smashed the plaintiff's left foot which was resting on the boulder. This resulted in the second plaintiff completely losing his toe which by then was forced completely lose from the skin. At the relevant period the policemen involved were members of the Port Moresby based Major Organized Crimes Intelligence Team (MOCIT). They were flown to the West New Britain Province to conduct police operations to hunt for and capture serial and notorious bank robber William Nanua Kapris. The Police operations were thus authorized by the National Government as well as the Police hierarchy. The tortuous actions of the police personnel involved were committed within these operations. In those circumstances:

HELD:

 (1) As the police operations were authorized by the National Government, the State was vicariously liable for any tortuous actions of the policemen concerned committed during these operations.

Interests paid- method of computing interests considered.

(2) This was a case where compensation for breach of human/constitutional rights and compensation for pain and suffering and loss of functionality of the teeth (first plaintiff) and loss of function of the toe (second plaintiff) are to be assessed separately.

Lance Kolokol –v- The State [2009] N3671; David Wari Kofowei [1983] PNGLR 449 applied.

(3) Despite section 12 (1) of the Claims By and Against the State Act, the conduct of the police in severely beating up the plaintiffs resulting in the plaintiffs sustaining serious bodily injuries amounted to serious breaches of constitutional rights. These breaches of constitutional rights were so severe and continuous such that they warranted payment of exemplary damages. 

(3) In the circumstances, the State bears the responsibility of paying exemplary damages.

Cases cited 
 
Kolokol v The State (2009) N3671
David Wari Kofowei- v -Augustine Siviri and The State [1983] PNGLR 449
Pawa Kombea- v- Semal Peke [1994] PNGLR 572
Ngants Topo –v- the State (2008) N3478
Teine Molomb-v- The State (2005) N2861 
Milia Yongole Kuri-v- Walter Kapty & NHC WS 1775 of 2009
Kawi Yawi-v-State N2209
 Peter Kuriti –v- The State [1994] PNGLR 262
Abel Tomba-v- The State (1997) SC 518, 
Kinsim Business Group INC –v- Joseph Hompiwafe and the State [1997] N1634
Andale More-v- Henry Tokam & The State [1997] N1645
Pinzer-v- Bougainville Copper Limited [1985] PNGLR 160
Cheong Supermarket Pty Ltd-v- Perry Muro [1987] PNGLR 24
Counsel

Mr Joe Kumbari Abraham, for the Plaintiffs
No appearance for the 1st, 2nd, and 3rd 4th Defendants

28th February, 2012 

DECISION ON ASSESSMENT OF DAMAGES

1. KAWI J: The plaintiffs successfully sued the State for breaching their Constitutional rights. The case came before me for assessment of damages only, liability having been determined with the entry of default judgement on the23rd of June 2011 after the failure of the state to file its defence to the suit. The State failed to appear at the trial to defend this action on the date of trial for assessment of damages and so leave was granted to the plaintiffs to proceed ex parte.

BACKGROUND

2. The case concerns a claim against the Police for breach of constitutional rights. The first and second plaintiffs are father and son, who were severely assaulted by Police personnel who were conducting special operations in Kimbe to capture serial bank robber, William Nanua Kapris. This Police operation was conducted by the members of the Police Unit known as the 'Major Organized Crimes Investigations Team' (MOCIT). These operations were conducted in Kimbe between July and August 2008.

3. On or about the 25th August 2008, the first and second plaintiffs were driving to their home located at Ponini along the Hoskins-Kimbe highway. As they were driving, armed members of the Police Unit followed them to their home. When the plaintiffs stopped the vehicle to go into their home, they were bundled and ordered to jump into the Police vehicle. They were driven to the Dami Research Station turn off past Buluma Station. There they were ordered off the vehicle and questioned as to the whereabouts of William Nanua Kapris. When the Police were advised that the plaintiffs had no idea as to who he was, they were severely beaten up by the Police personnel who had driven them there.

4. The first plaintiff describes the assault on him and his son as follows in his affidavit in support filed on the 12th of October 2010. At paragraph 8 of his affidavit he deposes to the following:

"The time was about 9:30pm when we all went to my home at Ponini, to speak to my son, who was then at home. 

At my Ponini house, the Policemen ordered my son and myself to get into the back of their hired Toyota Hilux vehicle and drove us off towards Hoskins Airport. At the turn off at Dami Oil Palm Research Station, they stopped and interrogated me and my son on the alleged bank robbery incidents".

5. Paragraph 9: "At the Dami Research Station turn off, the Policemen started punching my son and myself in the face and kicking us all over. They did this repeatedly and also gun butted my spinal column with their M16 guns and I received a big blow on my lower jaw which resulted in four (4) of my teeth breaking."

6. Paragraph 10: "The Policemen then placed a Police-issued gun that they were holding, in my hand and forced me to fire the gun to ridicule my son and myself."

7. Paragraph 11: "My son, Vincent Gabien, was ordered to place his toe against a rock and as he did that, the Policemen smashed his left toe with a boulder sized rock forcing the toenail to snap off his toe flesh and come out loose."

8. Paragraph 12: "We were crying and agonizing in great pain when the Policemen lifted us up and dumped us at the back of the Police hired vehicle- a Toyota Hilux double cab 5th element- and drove us around the Hoskins area until 4:00 am in the morning when they dropped us off at our Ponini home."

9. Paragraph 13: "The Policemen took into their custody the family car-a Hilux double cab, red in color- with other personal items, such as mobile phones. These items were recovered from the Policemen a few days later with the assistance of one of the firm's lawyer."

10. A photograph was taken of the first plaintiff reporting three broken teeth and a swollen face with bloodshot red eyes verified his claims of losing three teeth as a result of the Police assault and brutality. The swollen face verified the beatings received at the hands of the Police.

11. Another photograph showing a very infected and swollen sore toe verified claims by the second plaintiff, that he was forced by the Policemen to rest his toe on a rock. Another rock was then used by the Policemen to smash his toe against the rock, resulting in the toe nail coming off the flesh.

12. The claims by the plaintiffs is for the assault and atrocities committed upon them by the Policemen.

1.	PARTICULARS OF CONSTITUTIONAL BREACHES AND DAMAGES CLAIMED.

13. The plaintiffs seek the following relief:

a)	Compensatory damages for breach of constitutional rights pursuant to section 57 of the constitution;

b)	General damages for pain and suffering, fear and, psychological trauma and anxiety and stress suffered as a result of the Police beatings.

c)	Special damages

d)	Exemplary damages

e)	Costs

f)	Interest pursuant to statute.

2.	ASSESSMENT OF DAMAGES: THE APPROACH TAKEN

14. In the past, Judges of the National Court had a tendency to award global amounts for breaches of constitutional rights, even if the specific constitutional rights are identified. This would include damages for pain and suffering experience including damages for anxiety and stress suffered. General damages were grouped together with damages for breaching constitutional rights.

15. In the present case, I intend to award damages for the particular constitutional rights breached by excessive Police conduct separately from general damages which are for pain and suffering, anxiety, trauma and stress suffered. I will take the approach taken in Lance Kolokol v The State (2009) N3671. In that case, Cannings J held that there are at least two ways of assessing damages in cases involving breach of human rights or constitutional rights. Cases such as David Wari Kofowei- v -Augustine Siviri and The State [1983] PNGLR 449 and Pawa Kombea- v- Semal Peke [1994] PNGLR 572 demonstrates this first approach.

16. In Kofowei's case, the plaintiff was apprehended by two policemen regarding his alleged possession of a stolen hand bag. He was taken to the Goroka Police station and was detained for four days, the first two days being in hand cuffs. He was severely assaulted and subjected to inhuman treatment. He sued the Police officers concerned and the state, claiming damages for false imprisonment, assault, negligence and breach of constitutional rights. Ramage AJ, identified the different causes of action involved and awarded: K3, 800.00 for damages, K3, 500.00 for breaches of constitutional rights, K1, 000.00 for negligence and false imprisonment and breach of the Arrest Act.

17. In Pawa Kombea, the plaintiff was arrested and detained for four days and eventually charged for rape. He was prosecuted over a long period. He was a prominent figure in the community as well as being a member of the Southern Highlands Provincial Assembly. The allegations of rape were false. He sued the person making the allegations against him for malicious prosecution, false imprisonment and defamation. Kapi DCJ, awarded K15,000.00 for malicious prosecution ( comprising K2,500.00 for issue of search warrant, K7,500.00 for criminal proceedings and K5,000.00 for civil proceedings) K4,000.00 for fake imprisonment and K10,000.00 for defamation.

18. The alternative approach taken of making a global award is reflected by the decision of Cannings J in the case Teine Molomb-v- The State (2005) N2861. In that case, Police arrested, detained and charged a Western Highlander with being in possession of stolen property- being a carton of 45 day old chickens and an unlicensed firearm and live ammunition. He was acquitted in the District Court of one charge while the other charge was not pursued. He attended court on a number of occasions until all matters were resolved. Cannings J, delineated the different causes of action and the injuries sustained in these cause of action. He then assessed damages as a whole and awarded a global award.

19. In the case before me, Mr. Kumbari submits that the court should make an assessment of breaches of constitutional rights or human rights, separately from an assessment of general damages for pain, suffering, anxiety, stress and distress suffered as well as for the loss of functionality.

20. I agree with the approach suggested by Mr. Kumbari that in the circumstances of this case, this is the best approach to follow. General damages should be assessed to compensate the plaintiffs for actual assaults occasioned, the injuries sustained and their after effects. Then a separate amount of damages will be assessed. This is compensation for various human/constitutional rights. Special and exemplary damages will be considered separately.

21. I will therefore assess damages for the following categories:

a)	General damages
b)	Damages for breach of constitutional( human) rights
c)	Exemplary damages
d)	Special damages

GENERAL DAMAGES

22. This is intended to compensate the two plaintiffs for their pains and suffering, inconvenience caused, anxiety and distress caused to both plaintiffs and for the permanent loss of teeth (1st plaintiff) and for the permanent loss of a toe nail (2nd plaintiff) and other pains and injuries arising from and associated with this type of bodily injuries.

23. Makail AJ, recently reviewed awards of general damages in cases involving leg injuries in the case of Ngants Topo-v- The State (2008) N3478. The plaintiff in that case suffered a 65% loss of function of the leg following the collapsing of a bridge. The court awarded K30, 000.00 to that plaintiff who had lost 65% function of his leg. In a recent case in Madang, Milia Yongole Kuri-v- Walter Kapty & NHC WS 1775 of 2008. Cannings J, awarded K50, 000.00 in damages to a woman who suffered a 45% loss of function of a leg after it was broken when she fell through the floor of her rented NHC owned home. The incident was through the negligence and failure of the landlord, NHC, who failed to repair and maintain the house. 

24. The plaintiffs in this case did not suffer serious injuries as bad as in that case. Medical reports from the Kimbe General Hospital did confirm the injuries sustained and the treatment received. The 2nd plaintiff received medical treatment for two weeks until the sore healed. The first plaintiff had four (4) of his teeth extracted. He is now required to replace these four (4) teeth with false teeth. His injuries were assessed at 100% loss of function while no assessment was made for the second plaintiff in terms of percentage. But that does not mean his case is less serious than these other cases. I will therefore make the following awards for general damages:
 
25. Ruben Bornright Gabien (first plaintiff) - K20, 000.00
Vincent Gabien (second plaintiff) – K20, 000.00
 Total: K40, 000.00

COMPENSATION UNDER THE CONSTITUTION

26. Mr. Kumbari submits that a number of constitutional rights were breached. These are:

a)	Protection from inhuman treatment- constitution- section 36
b)	Right to full protection of the law- constitution- section 37(1)
c)	Deprivation of liberty- constitution- section 42

PROTECTION FROM INHUMAN TREATMENT- SECTION 36 OF THE CONSTITUTION

27. Both plaintiffs suffered badly from physical assaults. The assaults were perpetrated on them using Police issued boots and butts of Police issued rifles. They were punched and beaten when they lay on the ground. They were kicked using Police issued boots. The second plaintiff, Vincent Gabien, was ordered to stand up and place his left toe on a stone. Police picked up another boulder sized stone and smashed his left toe using that stone, against the stone on which he rested his toe. The first plaintiff, Ruben Bornright Gabien, was initially gun butted on his lower jaw. Subsequently he was severely punched on his lower jaw resulting in him (ie the first plaintiff) losing four (4) lower, central teeth. Medical opinion shows that he will now permanently lose the normal function of the lost tooth, especially in his ability to bite and eat and his speech abilities. The second plaintiff had his toe nail come off completely as the result of being hit with a stone against another stone. Medical opinion showed that as a result of this hit, he suffered oblique fractures to the third and fourth carpal bones. The plaintiff is now unable to walk properly. The plaintiff is a student at Hoskins Secondary, and this will affect his life, eg: taking part in sporting activities.

28. I will therefore make the following awards for inhuman treatment dished out by the Policemen:

Ruben Bornright Gabien- K15, 000.00
Vincent Gabien- K15,000.00
__________________
 Total: K 30, 000.00

FULL PROTECTION OF THE LAW- SECTION 37(1)

29. The kind of treatment dished out to the plaintiffs was horrific and most appalling. There were no good reasons for the plaintiffs to be severely beaten and tortured by the Policemen. They were then held captive under very painful, terrifying and agonizing circumstances. The second plaintiff, Vincent Gabien, fainted on two separate occasions while his father, the first plaintiff, was crippled from the knee down. He could not stand up or walk around. Both were then bundled into the police car and driven to the Hoskins Airport. There they drove around to different villages. 30. Their ordeal lasted for more than seven (7) hours. In Lance Kolokol-v- Constable George Amburuapi & The State; Cannings J, awarded K5, 000.00 under this head for breach of the plaintiff's constitutional (human) rights on four (4) different occasions. In all, His Honour awarded K20, 000.00 for damages under this head. Following Lance Kolokol I award K5, 000.00 each to the two plaintiffs giving a total award of K10, 000.00

DEPRIVATION OF LIBERTY. SECTION 42- CONSTITUTION

31. Both plaintiffs were severely beaten and then held captive by the Policemen for seven (7) hours. They were not taken at the earliest opportunity to a nearby Police station and then interrogated and charged. Following the case of Kawi Yawi-v-State N2209, I will award K6, 000.00 each to the two plaintiffs under this head of damages. A total of K12, 000.00 is awarded under this head of claim.

SPECIAL DAMAGES

32. Under the National Court rules, special damages must be strictly proven. In this case special damages are claimed in respect of medical expenses. An amount of K460.00- K230.00 per plaintiff- is claimed as the costs of paying for the medical treatment received. I do not find the amount claimed to be unreasonable. I therefore award the K460.00 being K230.00 per plaintiff to both plaintiffs.

EXEMPLARY DAMAGES

33. Exemplary damages are awarded as a measure of public indignation against excessive Police conduct especially conduct involving unauthorized use of force. It is intended to ensure that individual Police officers are made to take stock of and be accountable for their individual conduct. Since the landmark decision of the Supreme Court in Abel Tomba-v- The State (1997) SC 518, the courts have been quite reluctant to award exemplary damages against the state for abuse of Police power. In Lance Kolokol's case, Cannings J, held that the question to ask is whether the breach of law by the Police officers is a technical breach or whether it involves a significant and unwarranted departure from the exercise of Police powers; eg: where a Police operation is unauthorized and individual officers are not named. If the facts fit into the first category, exemplary damages is payable by the state. If the facts fit into the second category, then exemplary damages are not payable by the state. An affected person whose rights have been violated is expected to claim damages against individual policemen concerned.

34. The present case was not an unauthorized Police action. It was an authorized Police operation. The operation orders for this operation was drawn up by police headquarters in full consultation with head of the Police Task Force heading the Major organized Crimes Intelligence Team (MOCIT). The members of this team (MOCIT) were flown in from Port Moresby to conduct these operations to hunt for and capture the notorious bank robber William Kapris. Individual members of this team were identified and named in the writ of summons. This was an operation authorized by Police hierarchy to catch this notorious and serial bank robber. 

The National Executive Council was kept fully informed through the Police Minister of these operations. The tortuous conduct complained off was committed during and within the ambit of this authorized police operations.

35. Section 12(1) of the Claims By and Against the State Act, makes it clear that "No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim there has been a breach of constitutional rights so severe or so continuous as to ''warrant an award of exemplary damages"

And so the question here is this: Was the breach of constitutional rights so severe and continuous such as to warrant an award of exemplary damages? In answering this question, I must remind myself that an award of exemplary damages remains at the discretion of the court. The purpose of such an award as I alluded to earlier on is not to unjustly reward a claimant, but to symbolize public indignation, at Police behavior. See Peter Kuriti –v- The State [1994] PNGLR 262. An award of exemplary damages also ensures that individual Police men and woman are held accountable for their own individual actions and not to hide behind the corporate veil of the State. Finally an award of exemplary damages attempts to vindicate the distinction between a wilful act and an innocent act. 

36. Many judges have expressed the view in a number of cases, that if exemplary damages are to be awarded, than it should be awarded against individual Police Officers and not vicariously against the State. Two reported cases which stand for this proposition are Andale More-v- Henry Tokam & The State. [1997] N1645 per Injia (as his Hour then was). The other case which supports this legal position is the case of Kinsim Business Group INC –v- Joseph Hompiwafe and the State [1997] N1634 per Bidar AJ.

37. I am satisfied here that the State, the employer of the policemen concerned, Sergeant Watkins Toloup and Sergeant Robert Wolo, who were both named in the Writ of Summons, has obviously failed in its duty to train and educate its police officers on proper and acceptable standards of policing and acceptable behavior. The State will therefore be penalized for the gross and wilful unconstitutional actions of its Police officers, with an award of exemplary damages against it. An award of exemplary damages against the State will symbolize and displeasure of this court and the people of Papua New Guinea, about what the police did to the father and his son. I find that the breach of constitutional rights were so severe and contumelious and continuous to warrant and award of exemplary damages. The State is therefore ordered to pay the first and second plaintiffs exemplary damages in the amount of K20 000, to be equally apportioned K10, 000 each.

INTERESTS 

38. The plaintiff claimed interest in his statement of claim. The relevant law on interest is set out in section 1 (1) of the Judicial Proceedings (Interests on Debts and Damages) Act which is in these terms: " Subject to subsection 1 in proceedings in court for the recovery of a debt or damages, the court may order that they be included in the sum for which judgement is given interests, as such rte as it thinks is proper, on the whole or part of the debts or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgement". In Cheong Supermarket Pty Ltd-v- Perry Muro [1987] PNGLR 24, Bredmeyer J, pointed out that this section confers a fourfold discretion on the judge.
 
39. These are:

a) Whether to grant interest at all;

 b) To fix the rate of interest;

 c) To grant interest on the whole or part of the debt or damages for which judgement has been given;

 d) To fix the period for which interests will run.

40. In my view, the terms of section 1 are wide enough to give the court to award interests, even if it is not specifically pleaded and claimed. Following the decision of Bredmeyer J, I will exercise that discretion in this way:

1.	In the normal cause of event, the plaintiff will receive interests. There is nothing that takes this case out of the ordinary. The court will order that interests be included in the sum for which judgement is given.

2.	The interest rate commonly used is 8%. In view of the current economic situation in the country, I think 8% is the proper rate of interest. The courts have often applied a lower rate of interest (4%) for special damages in personal injury cases, for the reason explained in Pinzer-v- Bougainville Copper Limited [1985] PNGLR 160. However breaching constitutional or human rights is not a personal injury action, and so I will add 8% to the total award of damage.

3.	Interest is ordered to be paid on the whole of the sum of damages for which judgement is given. This is a human rights case and so, I will not draw a distinction between pre-judgement and post-judgement interest components of the heads of damage.

4.	I will fix the appropriate date for the appropriate period as the date on which the cause of action occurred .i.e. 25th August 2008. The end of the period is date of judgement which is the 28th February 2012.

5.	Thus D x I=A

Where D is the amount of damages awarded;
I is the rate of Interests payable per annum;
N is the appropriate period expressed in the number of years;
A is the amount of interests.

Hence K112,460 x 8/100 x 3.6 = K3,242.88

Interests payable is K3242.88

SUMMARY OF DAMAGES AWARDED

41. In summary, I award the following damages:

1.	General Damages
Ruben Bornright Gabien- K20, 000
Vincent Bornright Gabien- K20, 000

2.	Compensation under the Constitution
Compensation for inhuman treatment- s 36
Ruben Bornright Gabien- K15, 000
Vincent Gabien- K15, 000
 Protection of the law- s 37(1)
Ruben Bornright Gabien- K5, 000
Vincent Gabien- K5, 000
 Deprivation of liberty- s42
Ruben Bornright Gabien- K6, 000
Vincent - K6, 000

3.	Exemplary Damages
 K20, 000

4.	Special Damages
 K460. 00

Total Awarded: K112, 460.00

42. I award a total of K112, 460.00 to the two plaintiffs. I also award a total of K3, 242.88, being the 8% interests component. 

COSTS

43. The general rule is that costs follow the event .i.e. the winning party has its costs paid for by the losing party, on a party-party basis. The question of costs remains at the discretion of the court. In this case, there is nothing special that would warrant a departure from the general rule. I will award costs of this action to the plaintiffs to be paid by the State on a party – party basis, if it is not agreed upon. 

JUDGEMENT

44. There shall be judgement for the plaintiffs and I direct entry of judgement in these terms:

a)	Damages payable by the state to the plaintiffs is K112, 460.00
b)	Interest payable by the state to the plaintiffs is K3, 242.88
c)	A total judgement sum of K115, 702.88 is awarded to the two plaintiffs.
d)	Costs of this proceeding shall be paid by the State on a party-party scale to be taxed if not agreed upon. 

____________________________________________________________________

Joe Kumbari Abraham: Lawyer for the Plaintiffs
No representation for the Defendants