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Jerry v Sam [2020] PGNC 341; N8551 (2 October 2020)

N8551

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR)NO 125 OF 2016

BETWEEN:
JACKSON JERRY
Plaintiff

AND:
CONSTABLE PENGA SAM
First Defendant

AND:
SENIOR INSPECTOR VINCENT ISANDA, JOMBA POLICE STATION COMMANDER
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Narokobi J
2020: 8^th September, 2^nd October

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 for four (4) days. He was not taken to the hospital to receive treatment for his injuries. He was never charged. Liability was determined 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 K10,000.

(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.
• When he was unlawfully detained for four (4) days.

(5) On each of those occasions, three (3) of his human rights were breached:

• Freedom from inhuman treatment (Constitution, s 36(1));
• Right to the full protection of the law (Constitution, s 37(1));
• Liberty of the person (Constitution, Section

42).

(6) He was awarded K2, 000.00 for each of the first two occasions his rights were breached, a total of K4,000. For the second two occasions, they were a serious breach of the plaintiff’s rights so K3,000 each is awarded, a total of K6,000. Therefore, a total of K10,000 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.
(9) The total amount of damages awarded was K29,000. In addition, interest of K3,335.00 is payable, making the total judgment of K32,335.00.

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
Pawa Kombea 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

1^st September 2020

1. NAROKOBI J: On 19October 2019, liability was entered against the first and third defendants, with damages to be assessed. The trial was conducted on 10July 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 along the road past Wagol Settlement in Madang on 1 January 2015. He was assaulted by the First Defendant and other police officers. He was then taken to the Jomba Police Lockup and detained for four (4) days. He was released without any charges laid on him.
   
4. The plaintiff obtained judgement on liability in his favour and is now before this court seeking damages. He relies on his own affidavit filed on 28 June 2018. The defendants have not filed any affidavits in response.
   
5. I have also been greatly assisted by both Counsel’s apt submissions. In summary the plaintiff claims the following:
   

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 plaintiff entitled to damages, and how is it to be assessed and for how much?
   • If the answer to this question 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 of the law under s 37 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 28June 2018. He deposes to the following.
   
10. On Wednesday 31 December 2014 through to Thursday 1 January 2015 he was in the company of three other youths. They were drinking at his parents house celebrating the new year. On new years day they were invited to one of his friends house for a meal. The house was across the road from there place.
    
11. As they were about to cross the road, a police vehicle identified as Rapid Response Unit came in full sped and passed them. The vehicle then stopped and revered back. Three police men came out and asked them to hop on to the car. Once inside the vehicle they were assaulted by being kicked and punched.
    
12. While on the floor the first defendant booted the plaintiff’s mouth resulting in one of his upper tooth being cracked and two other lower tooth becoming loose. The first defendant then accused the plaintiff that he burnt his house and that he was going to kill him. After that they were locked up for four (4) days without being charged. He was released on 4 January 2015. He was not allowed to receive medical treatment for his injuries.
    
13. The plaintiff obtained a medical report which states:
    
    • Swelling and tenderness on the left knee;
    • Abrasions on the left knee;
    • Swelling on the right side of the face;
    • Cracked enamel on the upper anterior incisor teeth;
    • Loose tooth noted on the two lower anterior
      
14. I accept the plaintiff’s evidence but will consider what weight I should give to it. Although it is not corroborated, there is medical report to substantiate the extent of the injuries.
    

D ADDRESSING THE ISSUES

1. First Issue – Damages
   
15. 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.

16. In Kolokol, 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.
    
17. 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.
    
18. 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.
    
19. 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?
      
20. 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
   
21. The plaintiff claims general damages for being assaulted by the first defendant on 1 January 2015. He says that he was assaulted by the police and was not given the opportunity to be medically attended to.
    
22. 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.”

23. I take the present facts of the case, as a little more serious than the one in Chapok as the plaintiff will suffer from some permanent disfigurement due to the loose tooth. 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 K10,000 for general damages, being comparable to the case of Wangare v Max (2018) N7195. In that case the plaintiff was unlawfully assaulted by members of the Police Force and suffered general bodily injuries (cuts and abrasions and soft tissue injuries), which did not require hospitalisation and were not life threatening.
    
    2. Second Category of Damages – Compensation for Breach of Constitutional Rights
       
24. 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 for four (4) days. He was released on 4January 2016. Since liability has been established that there was breaches of his rights and freedoms, I look at the evidence for purposes of determining compensation under sections 57 and 58 of the Constitution.
    

25. 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 four (4) days.
      
26. Since the extent of the injuries are specified in detail from the medical report, I accept the plaintiff’s submission and award K3,000 each for the first two breaches, a total of K6,000.
    
27. 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 four days. I award K3,000.
    
28. 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 similar period to Dope v Malai, I award K3,000 for this breach too.
    
29. The total damages I award for breach of constitutional rights is therefore K12,000.
    
    3. Third Category of Damages – Special Damages
       
30. 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
       
31. 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.”

32. 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 four (4) days.
      
33. In light of these considerations I award exemplary damages to be paid by the State. The plaintiff submits that he should be entitled to K7,000. The breaches of the plaintiff’s rights were serious, and they are comparable to the case of Benjamin Alfred v Constable Brian Kapi and the State WS (HR) No 32 of 2018. The plaintiff’s unlawful detention for four (4) days without being charged is a serious breach of his rights and freedoms – it was continuous. I award K7,000 for exemplary damages.
    
34. The total damages I award are therefore as follows:
    

35. I proceed now to calculate interests on the total damages awarded at K29,000.00.
    

F INTEREST

36. 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.
    
37. 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 1 January 2015 to 2 October 2020, and calculate it as follows:
    
    • Yearly interest on K29,000in damages (general damages, damages for breach of constitutional rights and exemplary damages) = K2,900 (K29,000 x 0.02x5);
    • Monthly interest = K435 ((K580/12 x 9);
    • Weekly interest = nil (rounded off to the nearest month, ie2October 2020)
    • Total interest is K3,335 (made up of: K2,900 (1January 2016 – 2October 2020 – 5 years) + K435 (9 months, 1January 2016 to 2October 2020).
      
38. The total interest I award at 2% from the date the cause of action arose to the date of judgement is K3,335.00.
    
39. I therefore award a total judgement sum of K32,335.00.
    

G LIABILITY AND COSTS

40. 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.
    
41. 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

42. In consideration of the facts, the issues and the law, I make the following orders in relation to this matter:
    
    1. Third Defendant (the State) pay the plaintiff a total judgement sum of K32,335.00 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. Third 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

Mr. Leslie Mamu, Public Solicitor: Lawyers for the Plaintiff
Mr. Tauvasa Tanuvasa, Solicitor-General: Lawyers for the State