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Wanis v Independent State of Papua New Guinea [2021] PGNC 529; N9369 (28 December 2021)

N9369

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1142 OF 2019

BETWEEN
SOLOMON WANIS
Plaintiff

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Makail, J
2021: 15^th October & 28^th December

LIABILITY – Tort of trespass – Trespass to person – Assault by members of Police – Identification of tortfeasor – Assault occurring within scope or course of duty – Vicarious liability –Proof of – Wrongs (Miscellaneous Provisions) Act, Ch 297 – Section 1

DAMAGES – Assessment of damages – Award of damages – General damages for pain and suffering – Damages for breach of constitutional rights – Protection from inhuman treatment – Full protection of the law – Constitution – Sections 36 & 37

Cases Cited:
George Kala v. Joseph Kupo & The State (2009) N3677
Pius Pup v. Joseph Kupo & The State (2010) N3897
Bolisa Figa v. Willie Agong (2012) N4707

Counsel:
Plaintiff, in person
Mr. N. Joe, for Defendant

JUDGMENT

28^th December 2021

1. MAKAIL, J: This is a trial on liability and assessment of damages. At the trial after consultation with the parties, they elected to rely on affidavits that have been filed with no cross-examination of witnesses. Submissions on liability and assessment of damages followed suit.

2. The plaintiff sued the defendant for tort of trespass to person. He alleged that he was assaulted by members of the Police at Gerehu Police Station in Port Moresby on 3^rd July 2019 at about 11:50 pm. One of the members was identified as Constable Melprince Yanga who was in civilian clothes and drunk. He sought the following:

(a) General damages for pain and suffering.
(b) Damages for breach of constitutional rights under Sections 36 and 37 of the Constitution.
(c) Interest.
(d) Costs.

3. The defendant filed a defence on 19^th December 2019. It denied the allegation that the plaintiff was assaulted by members of the Police and sustained the injuries as alleged. In the alternative, it alleged that the assault by the identified member of the Police was outside the scope or course of duty for which it is not vicariously liable for the wrongful conduct pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

4. The plaintiff relied on the following:

(a) His affidavit filed on 9^th March 2020.

(b) Affidavit of Rexlie Lotan filed on 9^th March 2020.

(c) Affidavit of Josephine Lotan filed on 9^th March 2020.

(d) Affidavit of David Jik filed on 9^th March 2020.

5. The defendant relied on the affidavit of Sergeant David Joel filed 9^th July 2019.

Liability

6. It was submitted on behalf of the defendant that the evidence by the plaintiff establish that the identified member of Police who was the principal tortfeasor was in civilian clothes and it can be inferred that he was not on duty when he assaulted the plaintiff. For this reason, the defendant should not be vicariously held liable.

7. In any case, the assault was an illegal act and was not sanctioned or authorised by the Commissioner of Police and the State should not be held vicariously liable.

Findings of Fact

8. The assertions of fact contained in the affidavits by the plaintiff and his witnesses is overwhelming and prove the allegation that the plaintiff was assaulted by the members of the Police. One of the tortfeasors identified by the plaintiff was Constable Melprince Yanga. The assault occurred on the night of 3^rd July 2019 at the car-park of the Gerehu Police Station when the plaintiff went to attend to his brother David Jik who was detained at the police station for an unrelated incident. Constable Melprince was in civilian clothes and drunk.

9. When the plaintiff introduced himself as a lawyer and enquired of David, Constable Melprince responded harshly to him accusing him and his colleague lawyers and judges for destroying the country while he and other policemen were fixing it. He punched the plaintiff on his face and other members of the Police also joined in. When the plaintiff shielded his face, Constable Melprince threw another punch and struck him on his mouth. The plaintiff lost balance and fell to the ground and lost consciousness. He also lost a lot of blood from the injuries.

10. Constable Melprince was on duty because he was one of the members who was on the Charlie Shift that night when he assaulted the plaintiff. It follows that the fact that Constable Melprince was in civilian clothes and drunk does not detract from the fact that he was on duty.

11. Sergeant David Joel’s affidavit is of no value because he was not a witness to the alleged assault. The assault comprised of two punches by Constable Melprince on the plaintiff’s face and beatings on the body by other members of the Police. As a result, according to the medical report by Dr Thomas Du of Port Moresby General Hospital (Emergency Department) dated 4^th July 2019 the plaintiff sustained the following injuries:

(a) Swelling of right eye.

(b) Loss of vision of right eye by 18/24

(c) Swelling of right lower lip and upper lip.

(d) Laceration of right lower and upper lips.

(e) Multiple body aches.

12. The plaintiff was administrated pain killers and oral anti-biotic. Eye review to be done at the eye clinic.

13. It is the finding of the Court that the plaintiff was assaulted by members of the Police while they were acting within the scope or course of duty, one of them was Constable Melprince Yanga on the night of 3^rd July 2019 at the car-park of Gerehu Police Station. The defendant is accordingly, vicariously liable in damages for the wrongful actions of the members of the Police pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act Ch 297.

Assessment of Damages

(a) General damages for pain and suffering

14. The plaintiff submitted that given the injuries he sustained from the assault and based on awards in past police assault cases of similar nature, K10,000.00 is a fair and reasonable sum to award to compensate him for pain and suffering.

15. The defendant also referred to past cases of police assault where the Court awarded damages ranging from K4,000.00 to K6,000.00 and submitted that K4,000.00 would be a fair and reasonable sum to award under this head of damages.

16. The plaintiff suffered facial injuries which were of similar nature to those suffered by the plaintiffs in George Kala v. Joseph Kupo & The State (2009) N3677 and Pius Pup v. Joseph Kupo & The State (2010) N3897 and Bolisa Figa v. Willie Agong (2012) N4707. In those cases, the plaintiffs sustained facial and bodily injuries with swelling, and aches and pain from being assaulted. They were awarded K5,000.00, K6,000.00 and K10,000.00 respectively.

15. The plaintiff did not produce a recent medical report on the current state of the injuries and whether he has suffered any long term or permanent disability. Also, there is no eye doctor’s report on a review of his eye injury. In the absence of such evidence, the assessment of damages will be confined to those injuries the plaintiff sustained at the time of assault and verified by Dr Du in his medical report.

16. Based on the above reasons, the plaintiff will be awarded a sum of K8,000.00 as general damages for pain and suffering.

(b) Damages for breach of constitutional rights under Sections 36 and 37 of the Constitution.

17. The plaintiff submitted that he is entitled to be compensated for breach of his constitutional rights under Sections 36 and 37 of the Constitution and sought damages in the sum of K10,000.00. The defendant conceded that the plaintiff is entitled to an award of damages but only up to K2,000.00. Both parties are correct. The plaintiff will be awarded damages for breach of constitutional rights.

18. The manner in which the plaintiff was treated by the members of police especially Constable Meprince’s accusation about lawyers and judges destroying this country is quite disturbing and cannot be left unchallenged. The plaintiff did not only attend at the Police Station as a lawyer but also as a citizen of his country to enquire of his brother David who was detained for an unrelation and undisclosed incident.

19. The plaintiff had every right to enquire and it was for Constable Melprince and his colleagues to assist him. This was the first mistake and breach Constable Melprince and his colleagues committed. The second was when they assaulted him. The assault was totally uncalled for and unnecessary. It was unprovoked and a mob attack against a defenceless person.

20. The conduct described constitutes an inhuman treatment of the plaintiff and a breach of the plaintiff’s right to full protection of the law under Sections 36 and 37 of the Constitution and calls for a higher award of damages to compensate the plaintiff for the breach.

21. For the foregoing reasons, the plaintiff’s submission will be upheld and K10,000.00 is awarded for breach of constitutional rights.

(c) Interest

22. Interest will be awarded at rate of 2% on the total sum of K18,000.00 (K8,000.00 + K10,000.00) from the date of issue of writ of summon of 18^th September 2019 to date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

(d) Costs

23. There will be an order for costs of the proceedings in favour of the plaintiff, to be taxed, if not agreed.

Order

24. The orders of the Court are:

1. Judgment is entered in favour of the plaintiff in the sum of K8,000.00 as general damages for pain and suffering.
2. Judgment is entered in favour of the plaintiff in the sum of K10,000.00 as damages for breach of constitutional rights under Sections 36 and 37 of the Constitution.
3. The defendant shall pay interest at the rate of 2% on the toral sum of K18,000.00 from the date of issue of writ of summons of 18^th September 2019 until final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
4. An order for costs of the proceedings in favour of the plaintiff, to be taxed, if not agreed.

5. Time shall be abridged.
________________________________________________________________
Plaintiff self-represented
Solicitor General: Lawyers for Defendant