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Wai v Lung [2022] PGNC 363; N9756 (11 July 2022)

N9756

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 193 OF 2006

BETWEEN
SINU WAI
Plaintiff

AND
RESERVE CONSTABLE BILLY LUNG
First Defendant

AND
SAM INGUBA, QPM, COMMISSIONER FOR POLICE
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Linge A J
2022: 28^th June, 11^th July

ASSESSMENT OF DAMAGES – unlawful shooting by unidentified Police – vicarious liability by the State - payment of damages for bodily injury – exemplary damages refused

Cases Cited:

Kipahi v Nambos (2020) N8437
Ngants Topo v State (2008) N3478
Milia Yongole Kuri v Walter Kapty & National Housing Commission, WS No. 1775 of 2005, 20/2/08;
Kilokilo v Amburuapi (2009) N3571
Andrew Moka v the Motor Vehicle Insurance Limited (2004) SC729
Motor Vehicles Insurance Limited v Kol (2007) SC902
Kolokol v Amburuapi(2009) N3471
Kerry v State (2012) N4658
Jessie Namba v Constable Moses Naru & Ors (2011) N3573
Kuli v Kaldakasa PGNC95, N8306
Martha Limitopa & Poti Hiringe v The State [1988-89] PNGLR 364
Losia Mesa v Gari Baki & The Stat (2009) N3681
Abel Tomba v The State [1997] SC518
Peter Kuriti v The State [1994] PNGLR 262; [1994] PGNC 117
Lamon v Senior Constable Bumai [2010] PGNC 21; N3920
Wati v Gavera (2013) N5363

Counsel:

Mr. J. Unua, for the Plaintiff
Ms. Ohuma, for the Defendants

JUDGMENT

11^th July, 2022

1. LINGE A J: This is a ruling on assessment of damages of this cause of action following ruling on liability on the 8 September 2021. Specifically, the State was found to be vicariously liable for the shooting of the plaintiff. Trial on assessment was conducted on the 28 June 2022. Both parties were represented by counsel and extract of submissions tendered in Court.

Brief Facts
2. On the 18 June 2002, the plaintiff was shot by the first defendant in the left thigh with a shotgun. The shooting occurred when the plaintiff was fleeing the scene of a shootout from Police personnel who were chasing criminals following a purported hijacking of ballot boxes. The plaintiff suffered injuries as a result of the shooting by members of the Police.

3. The plaintiff instituted this proceeding on 3 March 2006 seeking general and special damages, interest plus costs against the defendants After trial on the 8 September 2021 the National Court, found the State vicariously liable.

Evidence

4. The plaintiff relies on two (2) affidavits of Sinu Wai filed 21 August 2017 and filed 12^th November 2021. Also, the affidavit of Dr. Ikau Mataio Kevau filed 12^th November 2021. Second and third defendants tendered no evidence.

Submissions

Plaintiff’s Submission

5. Mr. Unua for the plaintiff submitted that assessment of damages for consideration by the court must be based on three (3) heads of damages. These are General Damages, Exemplary Damages and Special Damages.

General Damages

6, Counsel submits from the outset that the injuries sustained by the plaintiff have been pleaded with specificity and proven on the balance of probability during trial on liability. The State was held to be vicariously liable for the injury caused to the left femur of the plaintiff as a result of the shooting by the first defendant with a shotgun on the 18 June 2002.

7. The only issue is assessment in respect of each category of damages and the appropriate amount to be awarded to the plaintiff. Counsel submits that the Court may be guided by comparable verdicts and the principles of stare decisis, ensuring some uniformity in awards though taking into consideration the circumstances of each case.

8. Counsel refers me to a list of cases dealing with comparable injuries and verdicts for my consideration. I set out the List:

(1) Kipahi v Nambos (2020) N8437, the Court per Kandakasi DCJ, awarded K20,000.00 as general damages to the plaintiff for suffering 15% residual loss occurring from a gunshot wound to his left thigh. Cases cited are comparable for purposes of arriving at an appropriate amount as general damages.

(2) Ngants Topo v State (2008) N3478, the National Court per Makail J, awarded K30,000.00 to a plaintiff who had suffered 65% of function of a leg.

(3) Milia Yongole Kuri v Walter Kapty & National Housing Commission, WS No. 1775 of 2005, 20.02.08,(unreported) per Cannings J the National Court awarded K50,000.00 general damages to a woman who suffered 45% of function of a leg.

(4) Kolokol v Amburuapi (2009) N3571, the National Court per Cannings J, awarded K25,000.00 to a young man in his 20’s who suffered a gunshot injury to the left leg by rogue policemen.

Present Case

9 Mr. Unua submits that the recent decision in Kipahi v Nambos (supra) goes to some extent to discuss the principles surrounding awarding of damages following entry of default judgment. The award of K20,000.00 to the plaintiff for 15% loss of his leg compares to 80% loss of the left leg in the present case.

10. He submits that the injury in the present case is more severe than in Kipahi case and warrants a higher award in general damages. Also, the cases discussed in Kipahi case were decided a decade earlier. However, like in Kipahi case, the factors of living expenses, inflation and prevailing circumstances are matters for consideration by the Courts and be reflected in the ruling, see Andrew Moka v the Motor Vehicle Insurance Limited (2004) SC729; Motor Vehicles Insurance Limited v Kol (2007) SC902 (28 November 2007).

11. Taking into account the comparable judgments of approximately two (2) decades ago and the general economic and living standard and inflation, Mr. Umua submits that it is appropriate to consider a higher award and that the Kipahi case should be considered as a yardstick and starting point.

12. Counsel submits that the Court is not constraint in exercising its discretion. No amount of money can ever heal the plaintiff’s injury. The injury is a major setback in life as he has had to live with the injury. The plaintiff should be entitled to a figure between K70,000.00 to K100,000.00 in general damages.

Medical Report

13. Counsel refers me to the expert Medical Report of the injuries in the evidence of Dr. Ikau Kevau. The summary of injuries as captured in the Medical Report are technical in nature but essentially concludes that the plaintiff has Eighty percent (80%) loss of efficient function of his left leg due to the sustained injury.

Exemplary Damages

14. Counsel acknowledges that courts have been reluctant to award exemplary damages against the State for the actions of police officers not acting within the scope of their lawful directive or duty.

15. He submits however that the Court has already established liability that it was a proper exercise of authority within the scope of a proper police operation. He seems to suggest that the State and Police Force whose duty is to train Policemen and women to carry out their duty in a legal, proper and acceptable standards of policing have been derelict in their duty and must be penalized for their agents’ actions.

16. He submits that exemplary damages in the sum of K20,000.00 is appropriate for the unjustifiable shooting of a man who was simply fleeing from the scene of a shoot-out between Police and criminals: Kerry v State (2012) N4658 and Jessie Namba v Constable Moses Naru & Ors (2011) N3573.

Special Damages

17. Counsel submits that the expenses would not have been incurred if the plaintiff was not shot by the agent of the State. The gun-shot wound to the plaintiff’s left thigh required medical treatment incurring necessary costs associated with treatment.

18. The plaintiff deposes on 17^th August 2017 that he expended an amount of K390.00 for medical expenses which he had paid.

Submission by defendants

General Damages

19. Ms. Ohuma of Counsel for the State did not dispute liability. She refer me to the rationale for award of general damages which includes compensation for pain, suffering and loss of amenities and to put the injured person as far as possible to the same position prior to or had he not suffered the injury, because of the defendant’s wrongful conduct. She cited the following cases: Kuli v Kaldakasa PGNC95, N8306 (11 March 2020); Martha Limitopa & Poti Hiringe v The State [1988-89] PNGLR 364; Losia Mesa v Gari Baki & The Stat (2009) N3681.

20. Counsel submits in specific reference to the case that the extent of the injury as pleaded and in evidence are the determinant of the appropriate award for general damages.

21. She notes the Medical Report which determined 80% loss of the efficient function of the plaintiff’s left leg occasioned by the injury sustained.

22. She refers me to a whole host of cases on the basis of comparison and submits that the plaintiff should be entitled to an award of K 30,000.00 as general damages.

Exemplary Damages

23. Counsel submits that in as far as the State is concerned, it is regulated by Section 12 (1) of the Claims By and Against the State Act 1996. It stipulates, “ No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there is a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.”

24. She submits further that out of this there are two approaches the courts have taken. The first is that provided it is proven, exemplary damages in such situation as here lies with the individual policeman for their wrongful actions and not the State. She cites the Supreme Court authority of Abel Tomba v The State [1997] SC 518 and Peter Kuriti v The State [1994] PNGLR 262; PGNC 117

23. She also refers me to other National Court cases that have awarded exemplary damages against policemen for breaches of human rights. Counsel also cited Lamon v Senior Constable Bumai [2010] PGNC 21; N3920, a case which Cannings J awarded exemplary damages against the State for the willful unconstitutional actions of its officers on the basis that the State has failed in its duty to train and educate its police officers on proper and acceptable methods of policing.

24. She submits though that as no police had been identified as the perpetrator of the wrongful shooting no award under this head should be contemplated.

Special Damages

25. Counsel submits that the plaintiff had not properly pleaded the expenses incurred as special damages in accordance with Order 8 Rules 33 (g) and 34 of the National Court Rules.

Assessment

26. This Assessment is for damages in tort for injury sustained by the plaintiff as a result of the wrongful shooting by an unidentified policeman. Vicarious liability by the State has been established.
27. In assessing damages in tort, the court is guided by the principle of restoration and making good the injury and to compensate for pain and suffering. The general law on damages has its roots in the latin maxim, restitution in integrum, although generally used in contract the principle is equally relevant is tort and action damages for breaches of human rights.

28. In Wati v Gavera (2013) N5363, a claim for damages for breaches of human rights, His Honour Cannings J remarked:

“An assessment of damages inevitably involves an exercise of discretion. Though Judges attempt to arrive at an award in as methodical, scientific and objective a manner as possible, ultimately it is a matter of good sense and intuition. Like a Judge..., in ... any civil case involving an award of damages, you try and award a just and appropriate amount. Nor is it to be a reward or a windfall gain for the plaintiff.”

29. The evidence of the medical doctor in relation to the injury is important to consider as well as all the factors and comparable cases at the court’s disposal. The Court has discretion to decide the appropriate amount and the exercise of that discretion is a vital cog in assessment.

30. In the exercise of my judicial discretion, I am guided by the principles of stare decisis in arriving at my decisions in relation to all three heads of damages claims. This is to ensure semblance of uniformity in granting of damages even taking into account the peculiar circumstances of each case.

Interest

31. Section 1 of the Judicial (Interest on Debts and Damages) Act 1962 states:

“1. Interest on Certain Debts and Damages

Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.”

[my underlining]

32. I consider interest in this case to accrue from the date of the filing of this cause of action by the plaintiff to the date of this judgement. The State is the defendant in the proceeding and thus appropriate scale of interest will apply.

Order

33. In the end I order:

1 The plaintiff is awarded general damages of K65,000.00.

2 Exemplary Damages: Nil

3 Special Damages: K 390.00;

4. Interest to be calculated at 2% annually from the date of filing of cause of action to the date of Judgment; and
   

5 Parties to bear each own costs.

6 Time is abridged to the time of settlement of this order.

Orders accordingly.
___________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants