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Wapi v Ialy [2013] PGNC 89; N5108 (25 March 2013)

N5108

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 516 OF 2009

BETWEEN

THOMAS WAPI
Plaintiff

AND:

SERGENT KOGA IALY
First Defendant

AND:

CONSTABLE ROBERT GAFIYE
Second Defendant

AND:

GARI BAKI, POLICE COMMISSIONER
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINE
Third Defendant

Waigani: Kandakasi, J.
2012: 13th August
2013: 25th March

CAUSE OF ACTION – Personal injuries – State servant and agents acting outside their lawful duty and responsibility – State not specifically authorizing such action - No liability against State.

CONSTITUTION – Breach of constitutional rights – Police actions or conduct not without duty and responsibility of - Servant on own frolic and detour of their own – State on liable for unlawful and unconstitutional actions of servants.

PERSONAL INJURIEIS – Assessment of damages – Police arrest - Holding without charge – Denial of bail – Personal assault – Breach of constitutional rights – Plaintiff obliged to prove damage, loss or injury – Only damages proven by evidence recoverable.

Cases Cited:

Coecon Limited (Receiver/Manager Appointed) v. National Fisheries Authority (2002) N2182
PNGBC v Jeff Tole (2002) SC694
William Mel v. Coleman Pakalia & The State (2005) SC790
Alex Awesa v. Southern Highlands Provincial Government (2013) N5107
Francis Kulunga v Michael Wandil (2010) N3910
In re James Eki Mopio [1981] PNGLR 416
Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260
Moip v MVIT [1993] PNGLR 485
Titus Kagl v. Peter Baki (2008) N3318
John Basil Ziporo v MVIL (2008) N3701
Michael Nikints v The Independent State of Papua New Guinea (1998) N1683
Pama Anio v. Aho Baliki (2004) N2719
Fred Angoman v. IPBC of PNG (2011) N4363
Grace Lome by her next friend Jack Lome v. Allan Kundi Western Highlands Provincial Police Commander (2009) N3791

Counsel:

J Nandape, for the Plaintiff
No Appearance, for the Defendant

25th March, 2013

1. KANDAKASI J: Thomas Wapi is seeking a K10,000.00 judgment with 8% interest for breach of his constitutional rights arising out of an arrest or detention for one day at the Boroko Cells in the National Capital District without charge, no opportunity to speak to his lawyer or a family member, being caused to clean a dirty toilet with his shirt and physical assault. These actions were allegedly committed by two policemen, Sergeant Koga and Constable Robert Gafiye, the First and Second Defendants respectively. Default judgment being entered against the defendants the matter came before me for assessment of damages.

Relevant Issue

2. The main issue to resolve is this. Is Thomas entitled to the damages he is claiming against each of the defendants? Of course there will be subsidiary questions in respect of each of the heads of damages Thomas is claiming, which we will consider when we come to them. These questions can be answered by reference to the principles governing the assessment of damages, what is pleaded and the evidence before the Court.

Relevant Principles

3. Turning first to the relevant principles I note that, in Coecon Limited (Receiver/Manager Appointed) v. National Fisheries Authority,[1] I summarized the relevant principles governing assessment of damages as follows:

"A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a Defendant's defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the Defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The Plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5. A Plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim."

4. This summation of the principles have been cited with approval, referred to, adopted and applied in a number of National and Supreme Court decisions. This includes the decisions in PNGBC v. Jeff Tole[2] and William Mel v. Coleman Pakalia & The State.[3] In the second case, the Supreme Court elaborated on the first principal and said, once default judgment is entered, the default judgment means the plaintiff has proven the matters pleaded together with their consequence. That means as I said in Alex Awesa v. Southern Highlands Provincial Government (2013) N5107:

"where a default judgment is entered with damages to be assessed, a plaintiff in whose favour the judgment has been entered, has the burden to adduce credible and admissible evidence at the trial establishing the damages claimed in his statement of claim."[4]

Present Case and Effect of Default Judgment

5. In the present case, the entry of default judgment means, Thomas has established his claim has pleaded and the consequences which follows that. But this does not mean that, Thomas must get his alleged damages as a matter of course. Instead, he has the burden of demonstrating exactly the kind of damages he has suffered and the kinds of compensation he is entitled to receive in damages. This is what is left to be determined by this Court.

Matters for Proof and Standard of Proof

6. The relevant question then is, has Thomas established his claim on the required standard? That question can be answered first by reference to a clear statement of what the required standard of proof is and secondly the evidence Thomas has placed before the Court. In respect of the first part, I remind myself that the stand of proof required in civil cases such as the one before me is that, a plaintiff must establish through the calling and adducing of relevant and credible evidence his claim on a balance of probabilities. This means in a civil trial, the Court must be satisfied by the evidence that on a balance of probabilities, the version of events contended for by the plaintiff is true. At the same time, I note that, the precise degree of satisfaction that must be insisted upon varies with the kinds of issues involved. If the issue is trivial, the more easily and swiftly will satisfaction be reached. On the other hand, if the issues are serious as in a allegation of fraud, a greater amount of cogent evidence would be required.[5]

7. Wilson J., explained with some clarity the same principle in Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260 in the following terms:

"In proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion.

[Thus ...] the subject matter may cause variations in the amount of evidence required to tilt the balance or probability."

8. What all these means in my view is this. In order to succeed in a claim for damages for constitutional or other breaches of the type Thomas complains of here, there must be credible evidence establishing a plaintiff's claim. I take this to mean that, the mere assertions by a plaintiff of harm or damage being done to him or her is not sufficient. Instead, the assertions must be properly supported by relevant, admissible and credible evidence in order for the claim to be sustained. In respect of claims that involve allegations against the State on account of its servants or agents' negligence or other unlawful conduct, there must be evidence from independent sources such as hospitals, police or churches and or witnesses supporting the claim.

9. This is necessary for a simple but very important reason. Most of the claims against the State as in this case are often undefended not because there is no contest on the claim but because those employed to defend the state and those involved in the commission of the matters complaint of fail the State. It is a notorious fact in Court and in our country that, the Office of Solicitor General is not getting the appropriate level of co-operation and assistance from the state employees who allegedly caused harm, damage or breach at the first place. Another problem is a failure by the Office of the Solicitor General to seek and secure the relevant and appropriate instructions from the relevant officers and appear in Court to defend the State and its named servants or agents. In some cases it could be a combination of these two or other factors. There could also be other contributing factors. Given this, people who are intent on gaining from the inefficiencies of the State, its arms and instrumentalities could easily come up with claims of constitutional or other violations which may be fraudulent. The only safeguard against the Court facilitating success on a fraudulent or an otherwise illegal claim is by insisting upon a properly pleaded claim that is properly and appropriately supported by relevant, cogent and credible evidence. Such evidence could come from independent third parties who witnessed the incident, or independent medical and other reports and records that are contemporaneous to the date of the alleged incident. Only a few smart fraudsters could easily meet the requirement to adduce credible contemporaneous evidence of records and or reports or such like from independent sources which lends support and adds credibility to ones claim. Hence, the justification in my view to require such evidence or proof to turn the balance in a plaintiff's favour. Genuine claimants will have no difficulty producing such evidence, especially if they live in our cities and towns.

10. In Rot Moip v. MVIT,[6] Woods J., first spoke of and emphasized the need for the production of medical evidence, which are contemporaneous to the date of an accident to give credence to a claim in personal injuries against the defendant arising out of a motor vehicle accident. In my decision in Titus Kagl v. Peter Baki,[7] I took the view that the same applies to all other personal injuries claims. I observed that such medical evidence:

"would be the only credible way of confirming or otherwise rebutting a person's claim of sustaining personal injuries or loss. Without such evidence, no credibility could be attached to a claim of personal injuries."

11. Subsequent decisions of the National Court as in the matter of John Basil Ziporo v MVIL,[8] by David J have adopted and applied the above approach. Earlier on, in Michael Nikints v. The Independent State of Papua New Guinea,[9] His Honour Sawong J, dismissed the plaintiff's claims has medical evidence adduced in support of the claim was not contemporaneous to the date of the alleged incident. Interestingly that was in a case of alleged constitutional rights breach and after default judgment had been entered against the State.

Assessment of Evidence and Finding of Facts

12. Having outlined the evidence and the relevant standard of proof, it is now appropriate to get into an application of the standard as against the evidence before the Court and determine if Thomas has established is alleged damages. The main evidence in this matter comes from Thomas' affidavit sworn on 3rd and filed on 10th November 2009. That is supported by the affidavits of Ray Saprak and Nandai Asi both sworn on 22nd and filed on 29th May 2012 and the affidavit of Constable Nau Lalai sworn on 22nd and filed on 23rd May 2012.

13. On the evidence before the Court, I find that Thomas is now about 52 years of age and he comes from Mogol Village, Mendi in the Southern Highlands Province. He is married with four (4) children. He has been an employee of the PNG Forest Authority for close to twenty (20) years as a filing clerk and he is a member of the Church of Nazarene.

14. In so far as the crux of his claim is concerned, according to Thomas's own affidavit, he says that, sometime during the morning hours of 29th August 2008, he was trying to reach a stapler from a table at his work place at the National Forestry Authority. At the table was a fellow female employee, Mrs. Helen Kipan who was speaking to someone on her mobile phone. As he was pulling his hand back from after reaching out to the stapler, Helen turned around. This caused him to accidently brush through Helen's breasts with his hand. He says he was embarrassed and apologized profusely to Helen, saying it was purely accidental and explained it was an accident and not intentional. He thought this was the end of the matter.

15. To his surprise however, on 5th September 2008 at 11:00am Sgt Koga Ialy (the First Defendant) and two other police officers in plain clothes turned up at his work place and requested him to accompany them to the Boroko Police Station, which he did. He was taken to the Boroko Police Station and kept waiting there for more than 4 hours. The waiting was for Helen and her husband to turn up and pursue her complaint against him. Several phone calls did not result in Helen getting over to the police station.

16. Sergeant Ialy told him that he needed to wait in the police station while he was sorting out some paper work. The Sergeant also told him that, if he wanted to, he could have himself bailed out. But he asked how he could do that when he was not yet charged and there has been no entry of the complaint in the occurrence book. After that exchange, he says, Sgt Ialy had him locked up in the cells without formally arresting and charging him and the Sergeant left for home.

17. After waiting in the cell for an hour, he asked another policeman, Constable Robert Gafiye (second defendant) as to how long it would take for Sgt Ialy to complete the paper works that would enable him to bail out of the cells. He also asked for the whereabouts of Sgt Ialy. Constable Gafiye asked him for his name and he provided his name, against which the Constable checked in the register of persons in the cells and found on the register an entry reading to the effect that he was being held for interview on an allegation of sexual harassment. By that time, it was 5:00pm and he got worried and started calling his bosses, family and friends. Around 6:00pm, Helen's husband and a brother of his tried to have him bailed out but was not possible as only the Sergeant had the power to enable that to happen.

18. By 9:00pm, he was still at the cells waiting. At that time, he had to go to the toilet to urinate and was in the toilet, when other, what he calls hard core criminals in the cells had him locked in the toilet from the outside and was kept struggling in the toilet for 30 minutes. The other criminals made all sorts of sounds and noises all of which caused him to be frightened and fear for his life. Thereafter, the hard core criminals falsely accused him of having no respect for them and that he had urinated in front of them. So they asked the Constable Gafiye to send him to their cell for them to teach him a lesson. The Constable without asking him slapped him twice on his face and punched him on the head after which Constable ordered him to take his shirt off and clean a dirty toilet with it. That he did out of fear of being thrown into the cells with the hard core criminals. By the time he finished cleaning the toilet, his shirt was all covered in dirt beyond use. Another detainee felt sorry for him and gave him his shirt. He says these experiences humiliated, frightened and upset him.

19. Around 1:00am the next day 6th September 2008, Sgt Ialy came and had him released from the cells. At the time of releasing him, Sgt Ialy told him that, if the complainants decided to pursue the complaint, he will have him arrested again.

20. Other evidence from the other affidavits filed for and in support of his claim confirms him being taken to the police station and being kept there without any formal charges and without any entry in the occurrence book. There is however no independent evidence confirming his allegations concerning the events in the cells and how fellow detainees and the policeman dealt with him, whilst he was in the cell.

Decision

21. From these evidences it is clear, police and therefore the state had reason to take Thomas to the Boroko Police Station for questioning. That was on Helen and her husband's complaint. Its seems however that, Helen and her husband decided not to pursue the charge on the same day Thomas was taken to the police station. It is therefore clear that, the police could not proceed with any arresting and charging of him. Sergeant Ialy gave him the opportunity to have himself bailed out prior to what he claims were unconstitutional actions and omissions of policemen and hence the State against him occurred. The Sergeant was in charge. He suggested bail for Thomas and if he took up that option seriously, he would have avoided the kinds of treatment he claims he received whilst in the police cells. Instead of pursuing the bail option, somehow, he came up with the idea that he had not yet been arrested and charged with an offence so he could not get himself out on bail. How did he come to the information that, he was not yet arrested and charged? Or how did he know that, Sgt Ialy was in no position to grant him bail? These are matters within his own knowledge, which he has failed to elaborate in any manner or form in his evidence. That is a factor that operates against him in that it creates some doubt in his claims. The effect of him failing to take up seriously the bail offer means he voluntarily assumed the risk of what he claims happened to him after Sgt Ialy left the police station, if indeed those events did occur. On this basis alone, I would dismiss his claim as not being proven.

22. There is an additional reason why this claim ought to be dismissed. That reason is this. If indeed, Thomas was slapped across his face and punched upon, his workmates, friends and relatives would have seen the evidence of that, since it was not long after these incidents and he was released. He could have also informed his friends and relatives of what the police did to him. He adduced no evidence of having done so. He has obtained and filed affidavits of three other people, one of whom is co-worker, another a policeman stationed at the relevant time at the Boroko Police Station where the various alleged actions against him took place but none of them speak of any physical or any other harm or injury being occasioned to him. There is no evidence also of what he immediately did about the kinds of treatment he says he received at the police station. Further there is no evidence of his claims of emotional stress, frustration, anxiety and humiliation. Before commenting further on the last aspect, I also note that, Thomas was able to call his relatives, workmates, his boss and friends. Hence, there is no prove of any denial of a constitutional right or breach thereof.

23. In Pama Anio v. Aho Baliki (2004) N2719, I reviewed some of the cases on award of damages for strees, frustration, anxiety and humiliation in the context of unlawful termination of employment setting. At the end of that review I said:

"I am of the view that, the law should only compensate those caused to suffer by the very mode of termination adopted by an employer that is clearly unlawful and does result in some proven damage or negative mental and physical impact on the dismissed employee, supported by appropriate medical or such other evidence. I do not consider it is right for there to be awards of damages for distress and frustration just because a dismissed employee claims it. For there is the danger that, by so doing, the Court might circumvent the long established principles of law that recognizes the right of an employer to hire and fire at will except as may be modified by statute or the free agreement of the parties. Not only that, it will also re-write, without good cause, the law requiring proof of ones loss before any damages or an award could be made by a Court of law.

(Underlying supplied)

24. I note that some Judges continue to award what they call nominal awards for unproven frustration and stress,[10] while others have decided to award damages in cases where such heads of damages have been proven.[11] I continue to subscribe to the line of authorities that award damages only when it is proven by appropriate evidence for the reasons I stated in the above quotation. I also add that, the Courts are not here to award damages merely because someone claims he has suffered some kind of loss. Instead the Courts owe a duty of care to the society and the parties appearing before them to only award damages for duly proven loss and damages. The Courts are not there to order compensation for injured feelings, frustrations, anger and the like which are not properly pleaded and established by appropriate evidence.

25. In the present cases, there is actually no clear foundation in the pleadings and then evidence of the particular kinds of injury, harm or damage, Thomas suffered. All there is, are his claims for damages in the prayer for relief and his affidavit without the support of any appropriate medical or other evidence that could add credibility to his claim.

26. Accordingly, I find that Thomas has not established his claims on the required standard of proof. Consequently, I order a dismissal of his claim with no order as to costs given that the State has not actively participated.

________________________________________________________
Nandape Lawyers: Lawyers for the Plaintiff
No Appearance for the Defendants

^[1] (2002) N2182
^[2] (2002) SC694.
^[3] (2005) SC790.
^[4] See also: Francis Kulunga v Michael Wandil (2010) N3910.
^[5] See: In re James Eki Mopio [1981] PNGLR 416, for a more detailed discussion on the different standard s of proof and degree of satisfaction required.
^[6] [1993] PNGLR 485.
^[7] (2008) N3318.
^[8] (2008) N3701.
^[9] (1998) N1683.
^[10] Fred Angoman v. IPBC of PNG (2011) N4363
^[11] Grace Lome by her next friend Jack Lome v. Allan Kundi Western Highlands Provincial Police Commander (2009) N3791.