N8706
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1061 OF 2017
BETWEEN:
PAIS ASABA
Plaintiff
AND:
SYLVESTER KALAUT as PROVINCIAL POLICE COMMANDER, MADANG PROVINCE
First Defendant
AND:
GARY BAKI POLICE COMMISSIONER OF PAPUA NEW GUINEA
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Narokobi J
2020: 4th November
2021: 20th January
DAMAGES – unlawful actions of police - assessment of damages – general damages – breach of human rights - special damages – exemplary damages

The plaintiff was assaulted by the police and locked up at Jomba Police lockup from 23 January 2015 to 23 February 2015 on suspicion of committing sorcery. He was never taken to the hospital to receive treatment for his injuries. He was never charged. All his contents in his bilum, including K700 for his son’s school fees were taken by the police and never returned. On 23 February 2015 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 for assault was assessed at K1, 000.00.

(4) The plaintiff’s human rights and freedoms were breached on seven (7) distinct occasions:
•	When he was assaulted on two occasions;
•	When he was not allowed medical treatment for his injuries;
•	When he was detained without being charged for any criminal offence;
•	Whilst in custody he was not given adequate and nutritious meals;
•	The searching of his bilum (bag) without a search warrant;
•	His bilum and contents were confiscated and never returned (in fact stolen); and
•	When he was unlawfully detained for 30 days.

(5) On each of those occasions, eight (8) of his human rights were breached:
•	Right to freedom (Constitution, s32(2);
•	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);
•	Freedom from arbitrary search and entry (Constitution, s 44)
•	Protection from unjust deprivation of property (Constitution, s 53)

(6) He was awarded K1, 000.00 for the first two occasions his rights were breached. Another K1,000 for not being fed adequate and nutritious meals in custody. For the next four occasions, they were a serious breach of the plaintiff’s rights so K10,000 each is awarded, a total of K40,000. Therefore, a total of K42,000 is awarded for breach of constitutional rights pursuant to sections 57 and 58 of the Constitution.
(7) Special damages of K1,000 is awarded as evidence has been led to support the claim.
(8) The breach of constitutional rights showed a wanton disregard of constitutional rights and warrants an award of exemplary damages of K15, 000.00.

(9) The total amount of damages awarded was K59,000. In addition, interest of K3,835 is payable, making the total judgment of K62,835.
Cases Cited:

Alfred v Kapi (2020) N8467
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

Mr W Akuani, for the plaintiff
No appearance for the Defendants

JUDGEMENT
20th January, 2021

1.	NAROKOBI J: On 27 September 2018, default judgement was entered against all 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 4 November 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 police officers in Madang around the wharf area (behind Andersons’s shopping complex) on suspicion of having committed sorcery. He was assaulted by the police. He was then taken to the Jomba Police Lockup and detained from 21 January 2015 to 21 February 2015. 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 15 November 2018 and two other deponents. The defendants have not filed any affidavits in response.

5.	In summary the plaintiff claims the following:

Type of damages claimed	Amount	
Constitutional rights breached @ K10,000 for each of the occasion	K50,000.00	
General damages 	K1,000.00	
Special damages	Nil 	
Exemplary damages	K10,000.00	
Total claimed	K61,000.00	

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

7.	After hearing counsel’s submissions, I consider the issues to be whether the plaintiff is entitled to damages, and if so, what are the categories of damages and how much? Depending on how the issue is resolved whether interest should be awarded and at what rate and who should be liable for the judgement sum, if any? 

C FACTS

8.	The plaintiff’s statement of claim pleads breach of constitutional rights. For breach of constitutional rights, he says his right to freedom under s 32(2), his right to freedom from inhuman treatment under s 36, his right to protection under s 37(17), proscribed acts under s 41 and liberty of the person under s 42, freedom from arbitrary search and entry under s 44, freedom from unjust deprivation of property and s 55(1) right to equality have all been violated.

9.	The uncontested evidence of the plaintiff is from his own affidavit filed on 15 November 2018. He deposes to the following.

10.	He was stopped by the police in Madang at the Lutheran Shipping wharf on his way to see his son and pay for his school fees. He had K700 on him in his bilum (bag). He was stopped on suspicion of causing the death of a man in the village from sorcery. He had his bilum confiscated with the money in it and assaulted by the police and locked up at Jomba Police lockup from 23 January 2015 to 23 February 2015. 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 23 February 2015.

12.	His assault and apprehension by the police is corroborated by the affidavit of Alois Mai filed on 27 November 2018. The date of his release is corroborated by the affidavit of First Constable Jegis Fulalek also filed on 27 November 2018.

13.	      For the 30 days in custody he was fed only one meal a day and further assaulted by the police on suspicion of being involved in an escape from the lockup.

D ADDRESSING THE ISSUES

First Issue - Damages

14.	    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.

15.	       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.” 

16.	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

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 18 April 2016. 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 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.

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 from 23 January 2015 to 23 January 2015, a total of 30 days. He was released on 23 February 2015. 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.

25.	I uphold the plaintiff’s contention on all the breaches he claims except for breach of s 55 (1) of the Constitution. I dismiss this claim for the reason that there is no evidence of the plaintiff being treated differentially from another person. 

Constitutional Rights and Freedoms Breached	Facts Showing Breaches	Evidentiary Basis	
1.Section 32(2) Right to Freedom	Detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff and corroborated by the affidavit of First Constable Jegis Fulalek.	
2.Section 36, Freedom from Inhuman Treatment.	The assault – on two occasions, not allowed medical treatment, detained without being charged for any criminal offences, and for being unlawfully detained.

Not fed adequate meals while in the lock-up.	Affidavit of the plaintiff and corroborated by the affidavit of First Constable Jegis Fulalek and Alois Mai.	
3. Section 37(1), Full protection of the law.	The assault – on two occasions, not allowed medical treatment, detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff.	
4. Section 37(17), Right to be treated with humanity and with respect for the inherent dignity of the human person.	The assault – on two occasions, not allowed medical treatment, detained without being charged for any criminal offences, and for being unlawfully detained.

Not fed adequate and nutritious meals while in the lock-up.	Affidavit of the plaintiff and corroborated by the affidavit of First Constable Jegis Fulalek and Alois Mai.	
5.Section 41, Proscribed acts	The assault – on two occasions, not allowed medical treatment, detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff and corroborated by the affidavit of First Constable Jegis Fulalek and Alois Mai.	
5. Section 42 – Liberty of the person.	Detained without being charged for any criminal offences, and for being unlawfully detained.	Affidavit of the plaintiff and corroborated by the affidavit of First Constable Jegis Fulalek.	
6.Section 44, Freedom from Arbitrary search and Entry	Bilum searched and contents removed (in fact stolen).	Affidavit of the plaintiff.	
7.Section 53(1), Protection from unjust deprivation of property 	Money from his bilum (K700 cash) and belongings were taken by the police and never returned (stolen).	Affidavit of the plaintiff.	

26.	     I accept the plaintiff’s submission based on the evidence before the court, that these rights were breached on seven (7) occasions:

•	When he was assaulted on two occasions;
•	When he was not allowed medical treatment for his injuries;
•	When he was not provided adequate and nutritious meal while in custody;
•	When he was detained without being charged for any criminal offence;
•	The searching of his bilum (bag) without a search warrant;
•	His bilum and contents were confiscated and never returned (in fact stolen); and
•	When he was unlawfully detained for 30 days.

27.	      Due to the fact that the extent of the injuries is 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.

28.	I award another K1,000 for not being provided adequate and nutritious meal while in custody.

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 Alfred v Kapi (2020) N8467 the plaintiff was detained without being charged for 21 days, I awarded K6,000. In this case the plaintiff was detained for 30 days, so I award K10,000.

29.	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. In Alfred v Kapi (2020) N8467 the plaintiff was detained without being charged for 21 days, I awarded K6,000. In this case the plaintiff was detained for 30 days, so I award K10,000.

30.	For searching his bilum and confiscating it without a search warrant on the basis that he had committed sorcery is alarming. Sorcery related violence has been a blight on Papua New Guinea’s international reputation. It causes excruciating pain and in many cases the murdering of many innocent Papua New Guineans by so called vigilantes. It is for this reason that Parliament repealed the Sorcery Act Ch 274 in 2013. I am therefore inclined to accept the plaintiff’s submission and award K10,000 for this breach.

31.	For unlawfully confiscating the plaintiff’s bilum and not returning its contents, I take judicial notice of the fact that this is a growing problem on the conduct of the police here in Papua New Guinea. Although the contents of the bilum may not be that valuable monetarily, it was significant to the plaintiff. He was a villager, a subsistence farmer and had worked hard to raise the money for his son’s school fees, K700. What the police did is criminal in nature too. So, I accept the plaintiff’s submission and award K10,000. 

32.	The total damages I award for breach of the plaintiff’s constitutional rights is therefore K42,000.

Third Category of Damages – Special Damages

33.	For special damages the plaintiff has claimed that he had K700 in cash in his bilum that was taken by the police and not returned with other contents of the bilum. I round off this sum and award K1,000 for special damages.

Fourth Category of Damages – Exemplary Damages

34.	For exemplary damages, I consider 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.”

35.	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 seven (7) occasions (referred to above); and
•	The cause of the plaintiff’s detention was in relation to sorcery; and
•	From the evidence the plaintiff was unlawfully detained for a period of 30 days.

36.	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. The breaches of the plaintiff’s rights were serious, he provided evidence to demonstrate the egregious conduct of the defendants. Of particular concern is the plaintiff’s unlawful detention for 30 days without being charged is a serious breach of his rights and freedoms – it was continuous. I accept the plaintiff’s submission but feel that an additional K5,000 should be added on the basis that this was a charge related to sorcery, and surprisingly at the hands of the police. If a police officer considers that sorcery is a criminal offence than there is little hope for many innocent and helpless Papua New Guineans who can be attacked just because another person accuses them of causing misfortune or death through the use of sorcery. I award K15,000 for exemplary damages.

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

Damages Claimed	Amount Awarded	
General damages	K1,000	
Constitutional breaches	K42,000	
Special damages	K1,000	
Exemplary damages	K15,000	
Total awarded	K59,000	

38.	I proceed now to calculate interests on the total damages awarded at K59,000.00.

F INTEREST

39.	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.

40.	I will award interest on the total sum of damages awarded commencing from the date when the proceedings were filed on 16 October 2017 to the date of judgment, that is from 16 October 2017 to 20 January 2021, and calculate it as follows:

•	Yearly interest on K59,000 in damages (general damages, damages for breach of constitutional rights and exemplary damages) = K3,540 (K59,000 x 0.02x3);
•	Monthly interest = K295 ((K1,180/12 x 3);
•	Weekly interest = nil (rounded off to the nearest month, ie 20 January 2021);
•	Total interest is K3,835 (made up of: K3,540 (16 October 2017 – 16 October 2020 – 3 years) + K295 (3 months, 16 October 2017 to 20 January 2021).

41.	The total interest I award at 2% from the date of filing of the proceedings to the date of judgement is K3,835.

42.	I therefore award a total judgement sum of K62,835.
G LIABILITY AND COSTS
43.	Since the police officer 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.

44.	I award costs in favour of the plaintiff to be taxed if not agreed.
H ORDERS
45.	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 judgment sum of K62,835 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, to be taxed if not agreed.
4.	File is closed.
5.	Time is abridged.
Judgment and Orders accordingly
Akuanai Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the State