N8467

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR)NO 32 OF 2018

BETWEEN:
BENJAMIN ALFRED
Plaintiff

AND:
CONSTABLE BRIAN KAPI
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SecondDefendant

Madang: Narokobi J
2020: 5th August, 1st September
DAMAGES – unlawful actions of police - assessment of damages – general damages – special damages – exemplary damages – breach of human rights 

The plaintiff was assaulted by the police and locked up at Jomba Police lockup from 18 April 2016 to 9 May 2016. He was never taken to the hospital to receive treatment for his injuries. He was never charged. On 9 May 2016 he was released from the Jomba Police Lockup. After he was released he did not go to the hospital and there was no permanent injuries. Liability was determined by default and the matter is now before the court for assessment of damages.
Held:

(1)	This was a case where compensation for breaches of human rights should be assessed separately from general damages (Kolokol v Amburuapi (2009) N3571 followed).

(2)	The Kolokol approach is not universal and relevant considerations include the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, and in this particular case, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms. But again, each case should be dealt with on its own merits.

(3)	General damages were assessed at K1, 000.00.

(4)	The plaintiff’s human rights and freedoms were breached on four (4) distinct occasions:

•	When he was physically assaulted;
•	When he was not allowed medical treatment; 
•	When he was detained without being charged for any     criminal offence; and
•	When he was unlawfully detained for 21 days from 18 April 
                                2016 to 9May 2016.

(5) On each of those occasions, five (5) of his human rights were breached:

•	Freedom from inhuman treatment (Constitution, s 36);
•	Right to the full protection of the law (Constitution, s 37(1));
•	Right to be treated with humanity and with respect for the 
inherent dignity of the human person (Constitution, Section 37(17);
•	Proscribed acts (Constitution Section 41); and
•	Liberty of the person (Constitution, Section 
42).
(6) He was awarded K1, 000.00 for each of the first two occasions his rights were breached, a total of K2,000. For the second two occasions, they were a serious breach of the plaintiff’s rights so K6,000 each is awarded, a total of K12,000. Therefore, a total of K14,000 is awarded for breach of constitutional rights pursuant to sections 57 and 58 of the Constitution.
(7) No award for special damages as there was no evidence to substantiate the claim.
(8) The breach of constitutional rights showed a wanton disregard of constitutional rights and warrants an award of exemplary damages of K7, 000.00.
(9) The total amount of damages awarded was K22,000. In addition, interest of K1,906.67 is payable, making the total judgment of K23,906.67.
Cases Cited:
Chapok v Yali (2008) N3474.
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Dope v Malai (2012) N4574
Felix Kua v. Clement Patiken (2010) N4103
Kolokol v Amburuapi (2009) N3571
Patai v Niugini Lumber Merchants Pty Ltd (1997) N1602
PawaKombea v Semal Peke [1994] PNGLR 572
Teine Molomb v The State (2005) N2861

TRIAL

This is a trial on assessment of damages.
Counsel
Ms D Ephraim, for the plaintiff
No appearance for the First Defendant
Mr E Manihambu, for the Second Defendant 

					JUDGEMENT 
1st September, 2020

1.	NAROKOBI J: On 10 March 2020, default judgement was entered against both defendants on liability, with damages to be assessed pursuant to Order 12 Rules 25(b) and 28 of the National Court Rules. The trial was conducted on 5 August 2020. This is the court’s decision on assessment of damages.
A	BACKGROUND
2.	The plaintiff claims damages for physical assault and breaches of his human rights and freedoms by the police.

3.	The plaintiff was apprehended by the First Defendant and other police officers at Kranget Island in Madang upon suspicion to have been involved in committing sea piracy. He was assaulted by the First Defendant and other police officers. He was then taken to the Jomba Police Lockup and detained from 18 April 2016 to 9 May 2016. He was released without any charges laid on him.

4.	The plaintiff obtained default judgement and is now before this court seeking default judgement. He relies on his own affidavit filed on 25 June 2020. The defendants have not filed any affidavits in response.  

5.	I have also been greatly assisted by both Counsels’ apt submissions. In summary the plaintiff claims the following:

Type of damages claimed 	Amount 	
General damages 	K10,000.00	
Constitutional breaches 	K11,000.00	
Special damages 	K6,500.00	
Exemplary damages 	K10,000.00	
Total claimed	K37,500.00	

6.	The pertinent facts substantiating each claim will be discussed under each head of damage claimed.

B	ISSUES

7.	After hearing both counsel’s submissions, I consider the issues to be as follows:

•	Whether the court can reconsider the issue of liability at this stage of the proceedings?
•	If the answer to the first issue is “No,” do the pleadings sufficiently connect the actions of the first defendant to the State, in order for the State to be vicariously liable for the actions and or omissions of the first defendant?
•	If the answer to the second issue is “Yes,” is the plaintiff entitled to damages, and how is it to be assessed and for how much?
•	If the answer to the third issue is “Yes,” is the plaintiff entitled to interests and if so, at what rate and for what period? 

C	FACTS

8.	The plaintiff’s statement of claim pleads several causes of action - physical assault, negligence, unlawful detention and breach of constitutional rights. For breach of constitutional rights, he says his right to freedom from inhuman treatment under s 36, his right to protection under s 37, proscribed acts under s 41 and liberty of the person under s 42 have all been violated.The plaintiff says that he should be entitled to compensations under ss 57 and 58 of the Constitution for these breaches.

9.	The uncontested evidence of the plaintiff is from his own affidavit filed on 25 June 2020. He deposes to the following.

10.	He was assaulted by the police and locked up at Jomba Police lockup from 18 April 2016 to 9 May 2016. He was not taken to any hospital to receive treatment for his injuries.

11.	The plaintiff was never charged for any criminal offences and later released on 9 May 2016.

12.	I accept the plaintiff’s evidence but will consider what weight I should give to it, in light of the fact that it is not corroborated and there is no medical report to substantiate the extent of the injuries. 

D	ADDRESSING THE ISSUES

1)	First Issue – Liability 

13.	After entry of default judgement, all issues of liability are considered to be determined (Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182 and Patai v Niugini Lumber Merchants Pty Ltd (1997).

14.	I have examined the pleadings and I am satisfied that there is a cause of action (Felix Kua v. Clement Patiken (2010) N4103). The cause of action relates to assault, negligence, and breach of human rights under the Constitution.

2)	Second Issue – Vicarious Liability 

15.	I have considered the second defendant’s submission that the pleadings do not connect the actions of the first defendant to the second defendant and as a result, consistent with the courts judgment in Pinda v Inguba (2012)  SC1181, the proceedings should be dismissed. I have read the statement of claim, and it is clear that the first defendant was performing his police duties when he committed the acts complained of. Although the plaintiff did not use the specific words “in the course of duty” what the statement of claim disclose is that what the first defendant did was performing his duties when he breached the plaintiff’s rights.

3)	Third Issue - Damages

16.	In assessing damages, I have reviewed a number of cases and I settle with the approach of Cannings J in Kolokol v Amburuapi (2009) N3571. His Honour took the same course the court took in David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Pawa Kombea v Semal Peke [1994] PNGLR 572.

•	whether the plaintiff is entitled to damages

17.	Following facts arose in Kolokol as recounted in the headnotes:
“The plaintiff was walking with friends near a public road. When he saw the police, he ran away. He was chased on suspicion of being involved in an armed robbery. He was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail. He sued the police officers who assaulted and shot him, and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants, with damages to be assessed.” 
18.	His Honour awarded damages for each separate cause of action pleaded, that is general damages, for each occasion the plaintiff’s rights were breached, special damages, exemplary damages and interests.

19.	The alternative approach is to award a global sum for all damages suffered as was what the court did in Teine Molomb v The State (2005) N2861. The plaintiff has urged the court to adopt the approach in Kolokol.

20.	As I said above, I take the approach in Kolokol. I do so bearing in mind that it is not a universal approach and each case ought to be considered on its own merits. I take the Kolokol approach as I consider the cause of action has been sufficiently pleaded, there is good evidence of the claim although that evidence is not corroborated. All in all, considering the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms, at least in so far as this case is concerned. But again, each case should be dealt with on its own merits.

21.	The following are therefore the heads of damages I will consider as submitted by the plaintiff:

•	Whether the plaintiff is entitled to general damages and if so, for how much?
•	Whether the plaintiff is entitled to damages for breach of constitutional rights, and if so, for how much?
•	Whether the plaintiff is entitled to special damages and if so, for how much? And
•	Whether the plaintiff is entitled to exemplary damages and if so, for how much?

22.	I also determine whether the plaintiff should be awarded interest on any damages assessed and if so, at what rate and for what period? 

E	DAMAGES AND COMPENSATION 

1)	First Category of Damages - General Damages for Assault, Pain and Suffering 

23.	The plaintiff claims general damages for being assaulted by the first defendant on 18 April 2016. He says that he was assaulted by the police and was not given the opportunity to be medically attended to.

24.	For general damages for the nature of injuries the plaintiff sustained, in that it did not require hospitalisation, I take as the starting point the case of Chapok v Yali (2008) N3474. There, the National Court awarded K5,000 for the following incident:

“3. He was getting ready to tell them that the vote of no-confidence had been postponed. But before he started, Mr Yali verbally abused him. He called him a "bastard" and an "arsehole". He accused him of associating with the Ambenob LLG president the previous night. In response to the unfriendly atmosphere Mr Chapok got up to leave. Mr Yali stopped him. He punched him several times in the face, drawing blood and causing him to fall to the floor. Another member of the group, Fred Maliupa, the Usino LLG president, also punched Mr Chapok.”
25.	I take the present facts of the case, as a little less serious than the one in Chapok simply for the reason that there is no detailed evidence provided on the nature and extent of the injuries. I also take into account the plaintiff’s evidence that he was not allowed to be given medical treatment after he was assaulted. Granted that he was assaulted and there was no evidence to rebut this, I award K1,000 for general damages.

2)	Second Category of Damages – Compensation for Breach of Constitutional Rights

26.	The evidence led at trial (by affidavit) showed that the plaintiff was assaulted, he was not allowed to be medically treated for his injuries and he was locked up without being charged from 18 April 2016 to 9 May 2016, a total of 21 days. He was released on 9 May 2016. Since liability has been established that there were breaches of his rights and freedoms, I look at the evidence for purposes of determining compensation under sections 57 and 58 of the Constitution.

Constitutional Rights and Freedoms Breached 	Facts Showing Breaches	Evidentiary Basis	
1.Section 36, Freedom from Inhuman Treatment.	The assault, not allowed medical treatment, detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff.	
2. Section 37(1), Full protection of the law.	The assault, not allowed medical treatment, detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff.	
3. Section 37(17), Right to be treated with humanity and with respect for the inherent dignity of the human person.	The assault, not allowed medical treatment, detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff.	
4. Section 42 – Liberty of the person.	Detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff.	

27.	 I accept the plaintiff’s submission based on the evidence before the court, that these rights were breached on four (4) occasions:
•	When he was assaulted;
•	When he was not allowed medical treatment for his injuries;
•	When he was detained without being charged for any criminal offence; and
•	When he was unlawfully detained for 21 days.

28.	Due to the fact that the extent of the injuries are not specified in detail, with no medical report and the evidence is not corroborated, which he should have obtained after he was released from the lockup, I award K1,000 each for the first two breaches, a total of K2,000.

29.	For being detained without being charged, I find that to be serious, I take as a starting point the court’s decision in Dope v Malai (2012) N4574. In that case, K3,000 was awarded, for a period of six (6) days of detention without being charged. In this case, the plaintiff was detained without being charged for 21 days. I award K6,000.

30.	For unlawful detention, I also find that to be a serious breach of the plaintiff’s constitutional rights. I rely on the case of Dope v Malai as a starting point where the plaintiff was detained unlawfully for six (6) days and awarded K3,000. Since this case is a longer period than in Dope v Malai, I award K6,000 for this breach too. 

31.	The total damages I award for breach of constitutional rights is therefore K14,000.

3)	Third Category of Damages – Special Damages

32.	I do not award any special damages as there is no evidence provided for special damages to be claimed.

4)	Fourth Category of Damages – Exemplary Damages 

33.	For exemplary damages, I take into account the requirement of Section 12 of the Claims By and Against the State Act 1996.  

“12. Judgements Against the State.

(1)	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 continuous as to warrant an award of exemplary damages.”

34.	I also take into account the court’s ruling in Kolokol and consider the following circumstances as warranting an award of exemplary damages:

•	The police were performing normal duties; and
•	There were breaches of the plaintiff’s constitutional rights on at least four (4) occasions (referred to above); and
•	From the evidence the plaintiff was unlawfully detained for a period of 21 days. 

35.	In light of these considerations, I award exemplary damages to be paid by the State. The plaintiff submits that he should be entitled to K10,000. Although the breaches of the plaintiff’s rights were serious, he provided the barest of evidence to demonstrate the egregious conduct of the defendants, especially in relation to the assault. However, the plaintiff’s unlawful detention for 21 days without being charged is a serious breach of his rights and freedoms – it was continuous. I award K7,000 for exemplary damages.

36.	The total damages I award are therefore as follows:

Damages Claimed 	Amount Awarded	
General damages 	K1,000	
Constitutional breaches 	K14,000	
Special damages 	Nil	
Exemplary damages 	K7,000	
Total awarded	K22,000	

37.	I proceed now to calculate interests on the total damages awarded at K22,000.00.

F	INTEREST

38.	For interest, I note that it is a discretionary matter for me to consider. I do not see anything speaking against the awarding of interest. But I note that I am confined to a 2% maximum interest rate pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 for claims against the state. 

39.	I will award interest on the total sum of damages awarded commencing from the date when the cause of action accrued to the date of judgment, that is from 18 April 2016 to 1 September 2020, and calculate it as follows:

•	Yearly interest on K22,000 in damages (general damages, damages for breach of constitutional rights and exemplary damages) = K1,760 (K22,000 x 0.02x4);
•	Monthly interest = K146.67 ((K440/12 x 4);
•	Weekly interest = nil (rounded off to the nearest month, ie18 August 2020)
•	Total interest is K1,906.07 (made up of: K1,760 (18April 2016 – 18April 2020 – 4 years) + K146.67 (4 months, 18April 2016 to 18 August 2020).

40.	 The total interest I award at 2% from the date the cause of action arose to the date of judgement is K1,906.67.

41.	I therefore award a total judgement sum of K23,906.67.

G	LIABILITY AND COSTS

42.	Since the first defendant who committed the illegal actions was acting in the course of duty, and the plaintiff has pleaded that his employer is vicariously liable, I hold the State responsible for the damages and compensation awarded.

43.	Costs is a discretionary matter, and I accept that the plaintiff incurred expenses pursuing this case, although it was done through legal aid from the Public Solicitors office, and I award a fixed sum of K1,000.00.

H	ORDERS

44.	In consideration of the facts, the issues and the law, I make the following orders in relation to this matter:

1.	Second Defendant (the State) pay the plaintiff a total judgment sum of K23,906.67 being for general damages, compensation for breach of constitutional rights under sections 57 and 58 of the Constitution, exemplary damages and interest.
2.	Interest is to accrue at the rate of 2% per annum for any amount not paid to the plaintiff within 30 days from this order.  
3.	Second Defendant (the State) pay the plaintiff’s costs of the proceedings, fixed at K1,000.
4.	File is closed.
5.	Time is abridged.

Judgment and Orders accordingly

Public Solicitor: Lawyers for the Plaintiff 
Solicitor-General: Lawyers for the State