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Yassah v Ambrose Junior [2024] PGNC 127; N10769 (3 May 2024)

N10769

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 986 OF 2020

BETWEEN
TOGU YASSAH
Plaintiff

AND
PROBATIONARY CONSTABLE WILLIE AMBROSE JUNIOR, CHIEF INSPECTOR TONY SEVESE & ELIZABETH AMBROSE
First Defendants

AND
DAVID MANNING – Commissioner for Police
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

GOROKA: Collier J
2024: 30^th April, 3^rd May

DAMAGES – Assessment of damages – default judgment as to liability – where plaintiff suffered loss of vision from assault by a police officer - principles for assessment of damages – award of damages

The plaintiff suffered serious facial injuries and in particular injury to his right eye as a result of an assault by a police officer that occurred on 27 February 2016. Despite undergoing two surgeries on his right eye, the plaintiff suffered at least 95% loss of eyesight in his right eye. Default judgment had previously been entered against all defendants. The plaintiff sought general damages, exemplary damages, and special damages referable to the incident and his loss of eyesight.

Held:

After consideration of the legal principles of the assessment of damages, and the serious nature of the harm caused to the plaintiff by a police officer on duty, the Court ordered that the plaintiff be awarded general damages, including damages for emotional stress, frustration and loss of enjoyment of life, in the amount of K90,000.00; exemplary damages in the amount of K5,000.00; and special damages in the amount of K150.00.

Cases Cited:

Aura v Papuan Airline Transport Ltd [1964] PNGLR 162
Bagu v Motor Vehicles Insurance Ltd [2023] N10111
Independent State of Papua New Guinea v Kei [2024] SC2550
Kandakasi v Independent State of Papua New Guinea [2017] N6601
Naki v AGC (Pacific) Ltd [2006] N5015
Yassah v Ambrose [2022] N9696

Legislation:

Judicial Proceedings (Interest on Debts & Damages) Act 2015 ss 4 & 6

Counsel:

Ms K Lafanama, for the Plaintiff
Mr R Uware, for the Defendants

3^rd May 2024

1. COLLIER J: On 14 December 2020, the plaintiff filed a writ of summons seeking damages for personal injuries sustained as a result of alleged unlawful assault or police brutality by Constable Willie Ambrose Junior, one of the first defendants, that occurred on 27 February 2016. Default judgments have been entered against all three defendants. The present task of the Court is to assess damages payable by the defendants referable to personal injuries sustained by the plaintiff.

PROCEDURAL BACKGROUND

2. On 6 April 2022, the plaintiff sought default judgment against all three defendants for default in filing a defence within the required time. On 24 June 2022, Mugugia AJ ordered that default judgment was to be entered against the second and third defendants, but not the first defendants, with damages to be assessed. Application for default judgment against the first defendants was unsuccessful as her Honour found that service of the writ of summons was not properly effected on any of the first defendants: Yassah v Ambrose [2022] N9696.
   
3. On 21 November 2022, the plaintiff again sought default judgment against the first defendants. Affidavit evidence was filed by the plaintiff’s solicitor deposing that the first defendants had in fact been served in, and that the solicitor failed to provide appropriate affidavit evidence before the hearing in June 2022.
   
4. On 14 June 2023, the Court ordered that default judgment be entered against the first defendants with damages to be assessed.
   
5. It follows that before me now is the assessment of damages in favour of the plaintiff against the first, second and third defendants.
   

PLEADINGS

6. In his writ of summons the plaintiff claimed, in summary, that:
   
   • Whilst with his family in his matrimonial home on 27 February 2016, the first defendants approached him;
     
   • The first defendants were:
     
   • Ambrose Willie Junior, a Probationary Constable Police Officer attached to the General Duties Division of the Goroka Police Station;
   • Tony Sevese, Chief Inspector Police Officer attached to the Highway Patrol Division of the Goroka Police Station; and
   • Elizabeth Willie, the Secretary of the Eastern Highlands Provincial Police Commander.
   • That upon approaching him whilst in uniform and without any reasonable cause, one of the first defendants, namely Mr Ambrose Willie Junior, physically assaulted him and uttered insulting words;
     
   • As a result of that assault, the plaintiff sustained serious facial injuries, particularly around his eyes, and was treated at the Goroka Provincial Hospital on the same date; and
     
   • On 1 March 2016 the plaintiff attended Goroka Eye Clinic. As a result of the assault the plaintiff suffered severe swelling on his right face with pain and bleeding, and was not able to open his eyes.
     
7. The plaintiff claimed entitlement to:
   
   • General Damages;
   • Damages for Emotional Stress and Frustration;
   • Damages for loss of Enjoyment of Life;
   • Exemplary Damages;
   • Punitive Damages; and
   • Special damages in the sum of K150.00.
     

EVIDENCE

Plaintiff’s evidence

8. At the hearing before me, the plaintiff relied on the following affidavits:
   
   • Affidavit of Togu Yassah filed 12th February 2021;
   • Affidavit of Dr Damien Sungu filed 17 April 2024;
   • Affidavit of Dr Linda Lep filed 17 April 2024;
   • Affidavit of Dorie Yassah filed 17 April 2023; and
   • Affidavit of Togu Yassah filed 17 April 2024.
     

Affidavit of Togu Yassah filed 12th February 2021

9. In summary the plaintiff deposed as follows:
   
   • On 27 February 2016 at around 5.30pm he was with his family at his residence. Two police cars arrived, one with Constable Ambrose, and the second with Chief Inspector Sevese and Ms Elizabeth Ambrose.
   • Constable Ambrose appeared intoxicated, approached the plaintiff and assaulted him. The beating went on for about 20 minutes before he stopped without any of his family stopping him.
   • Due to loss of blood he fell unconscious to the ground and was immediately taken to Goroka Provincial Hospital by his family. At that point he was referred to Goroka Eye Clinic.
   • He is a respected leader in his local community. The manner in which he was treated was an insult to his community.
   • He has suffered emotionally and spent monies on medical fees and bus fares to town to see lawyers.
     

Affidavit of Dr Damien Sungu filed 17 April 2024

10. Dr Damien Sungu, the eye specialist / head of eye surgery at the Eye Clinic Goroka Hospital, deposed in his affidavit that:
    
    • He assessed the plaintiff on 27 February 2016 and again on 29 March 2016;
    • On 29 March 2016, the plaintiff was assessed as having lost 55% of his vision;
    • the plaintiff initially underwent 2 surgeries:
      • the first operation was performed on the left eye on 21 July 2020. This was a cataract surgery, which he recovered well with visual acuity of 6/12; and
      • the second operation was done on his right eye (the injured eye) on 25 June 2021. The prolapsed iris at the scleral tunnel was cut and the wound sutured with 10/10 nylon;
    • A review of the plaintiff on 15 September 2022 revealed there was little visual improvement on the right eye;
    • On 14 March 2024, the plaintiff received further surgery on the right eye. The surgery was performed by Dr Lep with Dr Sungu assisting; and
    • The plaintiff has unbalanced eyesight which would cause him to be unable to read from a computer and also work on one as he was doing at the time of his employment in 2016. The damage will continue to affect his eyesight.
      
11. At the hearing Dr Sungu was called as a witness. Ms Lafanama for the plaintiff took Dr Sungu to his affidavit filed 17 April 2024, in particular Annexures “B” and “C”. Annexure “B” was a medical report signed by Dr Sungu dated 29 March 2016, and was in the following terms:
    

MEDICAL REPORT FOR MR TOGU YASSAH MALE 51 YEARS OLD

The above client first presented to Goroka Provincial Hospital Accident and Emergency on the evening of 27^th of February 2016. He presented with severe swelling on right side face with pain and bleeding. He was reported to have been beaten up by a policeman in uniform under gun point an hour ago. On examination, he had cut superficially on his face so had two stitches applied to close up his wound.
He now has overall loss of vision at Fifty five percent (55%) loss resulting from the injury he sustained. He will require surgery on his left eye to replace the lens in the near future however the outcome is uncertain...

12. Annexure “C” was a further medical report of Dr Sungu dated 15 September 2022, and was in the following terms:
    

Re: Current Medical Assessment Report for Mr Togu Yassah-Male 56 Years {Police Brutality)
This is a current local ophthalmic assessment report for Mr Togu Yassah for the benefits of doubt.
Assessment done:
Right eye:
Visual Acuity - very low vision of counting finger only at 2 meters, there is good improvement with pinhole with 6/9-3 This is a good indication for refractive error correction. He has got +17.00 diopter posterior chamber intra-ocular lens implanted from small incision traumatic cataract surgery. He received two surgeries to this eye on 21/07/2020 and again on 25^th /06/2021 respectively.

The second operation was due to intra-occular lens dislocation due to suture less surgery performed eight (8) months earlier on .The initial damage to this eye involved capsulsar bag which was not able to stablised the artificial lens implanted. Was sutured with 10-0 Nylon insitu. The pupil is irregular with iris captured through the wound at 12.00 o'clock region. He is developing posterior capsular occification which would require fourth operation by using YAG Laser. Both this condition and sutured cornea is producing myopia so outcome is poor. He loss ninety five (95%) of vision. (Refer attached Snellen Chart for vision test) There is possibility of third operation to correct the vision if he agrees.

Left Eye:
He also received small incision cataract surgery with posterior chamber intra-occular +17 diopter lens implanted to left eye. The outcome to this eye is good with 6/12 which is ninety percent (90%) recovery.

Outcome:
As a consequence from the “initial grievous bodily harm” he sustained has affected his dominant eye (right) sight as he is not able to see well from the distance

Social impediment:
In conclusion, on medical ground I am convinced that, his reading will be problematic because of unbalance eye sight, computer work is affected so his normal duty of work is affected therefore he is not able to find work to feed his children.

13. Dr Sungu also gave oral evidence at the hearing that, in summary:
    
    • The plaintiff had lost 95% of the vision in his right eye. There was a possibility that it might be corrected by vitreoretinal surgery, however there were no surgeons in Papua New Guinea who could perform such surgery; and
    • The deterioration in the plaintiff’s vision could not be ascribed to his age, because the plaintiff was 51 years old at the time of the relevant incident, and it is more likely that persons begin to suffer from cataracts after the age of 60.
      

Affidavit of Dr Linda Lep filed 17 April 2024

14. Dr Linda Lep deposed that on 14 March 2024 she conducted the suturing of the plaintiff’s right eye. Dr Linda Lep deposed the following findings in relation to the plaintiff’s injuries:
    

6. Both eyes suffered from the trauma, however the right eye sustained permanent damage over time, vision in the right eye cannot be improved further. The damage is permanent therefore he is awarded 100% loss of visual function on the right eye. However, he is advised to seek final opinion from vitro-retinal surgeon overseas which may cost him over hundred fifty thousand kina (K150, 000) for surgery alone.

7. As for the left eye, the cataract was treatable, hence his sight was restored. Otherwise, he has also suffered from psychological stress of trauma and going through surgery.

Affidavit of Dorie Yassah filed 17 April 2023

15. Ms Yassah is the wife of the plaintiff. In summary her evidence was as follows:
    
    • Since their marriage, the plaintiff has been employed by various employers. Most recently the plaintiff was employed by Coffee Industry Corporation in 2008, where he remained until his injury forced him to resign in 2016;
    • After the event involving the plaintiff and the first defendants, her family suffered financially because his injury affected his eye and he has been unable to work. Prior to the events the plaintiff was the breadwinner of the family;
    • The children and grandchildren of the plaintiff and Ms Yassah remain under their care;
    • Ms Yassah had worked with ANZ Bank and subsequently Kina Bank from which she retired in 2022. Both she and the plaintiff are now unemployed; and
    • The normal living standard of the family has deteriorated since the events because the plaintiff cannot find formal employment.
      

Affidavit of Togu Yassah filed 17 April 2024

16. In summary, the plaintiff deposed that:
    
    • The assault caused serious injury to both eyes which led to his resignation from his employment with Coffee Industry Corporation in December 2016, where he had been employed since 2008;
    • He cannot see clearly and focus on objects before him is blurred;
    • His unemployment caused financial difficulties for his family; and
    • Since filing the writ of summons, he has incurred K1,300.00 in further expenses, including for two surgeries and multiple medical reports.
      

Defendants’ evidence

17. At the hearing, the defendant relied on the following affidavits:
    
    • Affidavit by Willie Ambrose filed 3 October 2022;
    • Affidavit of Tony Sevese sworn and filed 3 October 2022; and
    • Affidavit of Elizabeth Ambrose filed 3 October 2022.
      

Affidavit by Willie Ambrose filed 3 October 2022

18. In summary, Willie Ambrose deposed that:
    
    • A week after the incident, he and his mother decided to compensate the plaintiff, and in compensation took to the plaintiff 1 live pig valued at K1,000.00, cash of K1,700.00, 20 live chickens and some garden food to compensate him. The plaintiff however did not accept this, having told him to come back the following week. Upon return, the plaintiff told him that he has referred the matter to the police;
      
    • As a result of the criminal trial, Mr Ambrose was ordered to compensate the plaintiff in the amount of K10,000. This payment was made on 2 February 2019; and
      
    • Since receiving the payment of K10,000, he has seen the plaintiff wearing glasses as usual as before and is perfectly well.
      

Affidavit of Tony Sevese sworn and filed 3 October 2022

19. In summary Mr Sevese deposed:
    
    • The plaintiff was the leader and spokesman of a rowdy group of people who claimed to have an issue with Ms Willie, notwithstanding that they were not involved in the events for which the plaintiff claimed a grievance.
    • The plaintiff had led a rowdy crowd to the Willie household and one of her children had been assaulted. The plaintiff however denied his involvement with that rowdy crowd.
    • Although Constable Ambrose punched the plaintiff in the face, Mr Sevese considered that the plaintiff had incited and instigated the incident.
    • On 2 February 2019 he witnessed Constable Ambrose compensating the plaintiff K10,000.00 at a ceremony at which community leaders were present.
      

Affidavit of Elizabeth Ambrose filed 3 October 2022

20. Ms Ambrose deposed, in summary:
    • She was employed as an assistant Admin Officer with the Police Department in Goroka Police Station.
    • On 27 February 2016 she was at her house in Goroka where she lived with her children. On that day the plaintiff mobilised a rowdy group of people to go to her house to settle an incident of the previous night to which neither she nor her children were a party. When Ms Ambrose asked the plaintiff what the problem was, he responded that he wanted “Limu” to come out to sort out an issue. Ms Ambrose responded that Limu lived elsewhere.
    • When Ms Ambrose returned to Goroka around 4.00pm that day she saw that her youngest son Paul had been assaulted. Paul also told her that the crowd mobilised by the plaintiff threatened to stone her canteen and her house.
    • Ms Ambrose went to the police station where her eldest son, Constable Willie Ambrose junior was on duty.
    • Ms Ambrose went to the plaintiff’s house where he was drinking alcohol. She asked the plaintiff to come and assist identifying the youths who had assaulted her son Paul. The plaintiff refused and Constable Ambrose then punched the plaintiff in the face.
    • A week later she and Constable Ambrose went to the plaintiff’s house to apologise, however he refused to accept their apology. A week later he told them that he was referring the case to the police.
    • Her son Constable Ambrose was arrested, charged and convicted. He was put on a good behaviour bond, fined K2,000.00, and ordered to compensate the plaintiff K10,000.00.
      

SUBMISSIONS

21. Counsel for the plaintiff and the defendants both handed up submissions at the hearing. Both Counsel also referred me to extensive authorities.
    
22. In summary, Ms Lafanama for the plaintiff submitted:
    
    • The most comparable cases with that of the plaintiff were those where a person has suffered 100% loss of vision of one eye. In such cases in more recent times plaintiffs have recovered between K50,000.00 and K100,000.00 in general damages.
      
    • The circumstances where the assault was perpetrated by Constable Willie Ambrose, a serving police office on duty, meant that relevant events involved an unwarranted departure from the proper exercise of police powers. This warranted an award of exemplary damages in the region of K5,000.00.
      
    • The plaintiff had spent considerable sums of money on his medical treatment, for which receipts were given and included in his evidence. The plaintiff sought an award of K1,350.00 by way of special damages.
      
    • The plaintiff also sought interest at 2%.
      
23. Mr Uware for the defendants submitted, in summary:
    
    • The evidence of Dr Linda Lep is more recent and more reliable than that of Dr Sungu.
    • A more reasonable award of general damages to the plaintiff is in the region of K20,000.00.
    • No evidence was adduced by the plaintiff as to stress or frustration such as to warrant an award of damages under that head.
    • Evidence adduced by the plaintiff does not support an award of exemplary damages or punitive damages.
    • The plaintiff pleaded an amount of K150.00 by way of special damages. Notwithstanding that in submissions he has sought more, the Court should award no more than the amount set out in the pleadings.
    • Any award of damages should take into account the amount of K10,000.00 compensation paid by Constable Willie Ambrose to the plaintiff.
    • Interest should be allowed at 2%.
    • Costs should follow the event.
      

CONSIDERATION

24. The evidence of the parties is plainly contradictory in respect of events leading to the incident where the plaintiff was injured. However, as both Counsel recognised at the hearing before me, issues of liability and culpability are no longer before the Court in light of the default judgments against all defendants. It is only the quantum of damages which is now in issue. The defendants do not dispute that the plaintiff is entitled to an award of damages – the question is how much.
    
25. The principles in relation to assessment of damages are well established.
    
26. As explained by Cannings J in Naki v AGC (Pacific) Ltd [2006] N5015 at [12], the main principles that are applicable to an assessment of damages are:
    
    • In a civil action, the purpose of an award of damages is to put the innocent party in the same position, as far as possible, as they would have been in if the wrongdoer had not committed the wrongful act (the breach of contract). (Livingston v Raywards Coal Co [1880] 5 App Cases 25.)
      
    • The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person's case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
      
    • Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia AJ.)
      
    • The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
      
    • The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
      
    • If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
      
    • The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
      
    • Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State [1998] PNGLR 247, National Court, Injia J.)
      
    • The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi v Sergeant Poko (2001) N2274, National Court, Jalina J.)
      
    • The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)
      
27. The evidence before the Court is that the plaintiff has retained, at best, only 5% vision in his right eye following the incident involving the first defendants. This is a serious issue. As Smithers J observed in the Supreme Court in Aura v Papuan Airline Transport Ltd [1964] PNGLR 162:
    

I must remember that the bulk of mankind go to the grave with two eyes, both efficient to see with. On the other hand, many people suffer the loss of an eye by accident or by disease from external or internal causes. In addition, a man who has for practical purposes one good eye suffers continual anxiety in the apprehension of injury to the other and must make constant conscious efforts to avoid injury to it.

Should the plaintiff’s plans not eventuate and should he be forced to seek some other mode of employment, and should he suffer no injury to his good eye, it is not apparent that he would suffer any major difficulty in obtaining some sort of employment. If he suffers some injury to the right eye, however, there would be great difficulty. I do not forget that if injury is received to the right eye it may quite possibly be itself compensable.

To my mind the major considerations in the assessment of a fair and reasonable sum to award the plaintiff are:

The mere loss of efficiency of a precious organ resulting from physical damage to it.
The risk of such loss of efficiency acquiring a disabling character should the plaintiff’s right eye be injured.
Anxiety, inconvenience and restriction of life resulting from both of these.

28. The National Court has more recently considered applications for damages in circumstances where a plaintiff has lost vision in one eye. While plainly the assessment of damages in each case is to be determined on the facts of the particular case, it is helpful and relevant to have regard to such other cases and commentary of Judges of the National Court in comparable circumstances.
    
29. In Bagu v Motor Vehicles Insurance Ltd [2023] N10111 the plaintiff was involved in a motor vehicle accident, resulting in injuries and disabilities including 100% loss of vision in his right eye. Justice Makail comprehensively summarised awards of damages in such circumstances:
    

Eye Injury

47. According to the medical report and not from the Ophthalmologists report the plaintiff suffered 10% loss of vision on the right eye . A quick survey of past cases for loss of vision of one eye shows that awards were between K30,000.00 and K85,000.00. Both learned counsel for the parties cites some of these cases in their respective submissions. For example, in Yalao v. MVIL [1997] PNGLR 441 K30,000.00 was awarded for pain and suffering and loss of amenities. K1,000.00 was awarded for other cosmetic injuries. In Joseph Dikini v. John Wamei (1997) N1562 the Court awarded K35,000.00 to the plaintiff in general damages for pain and suffering for loss of vision of one eye .

48. In John Pias v. Michael Kodi & Ors (2006) N2972, a 42-year-old male plaintiff lost 100% vision of right eye after being assaulted by three members of the Defence Force and was awarded K60,000.00 while in Tony v. The State (2008) N3477, the plaintiff lost 100% vision of left eye when he was struck by a loose tyre wire following collapse of a foot bridge. He was awarded K50,000.00 for pain and suffering and loss of amenities.

49. In Kandakasi v. The State (2017) N6601 the plaintiff was assaulted by members of the police and lost 100% vision of the right eye . He was awarded K85,000.00 and in Awaparu v. Commissioner of Police & The State (2018) N7177, the plaintiff was shot on his left eye by a member of the police and lost 100% vision of that eye . He was awarded K80,000.00 for pain and suffering and loss of amenities.

50. The Court accepts learned counsel for the plaintiff’s submission that based on Andrew Moka v. MVIL (2004) SC729, it is open to the Court to increase the award for the purpose of inflation. It is noted from the above cases that the recent trend is that general damages of 100% loss of vision of one eye were between K50,000.00 and K80,000.00 within a span of 10 years for the period between 2008 and 2018. Learned counsel for the plaintiff submits that an increase in the award by K20,000.00 from the latest award of K80,000.00 to account for inflation will give a total sum of K100,000.00. The Court accepts learned counsel’s submission and award a sum of K100,000.00 for loss of vision of right eye.

30. I gratefully adopt Makail J’s summary of relevant principles and recent case law.
    
31. In my view, given that the evidence before the Court that the trauma to the plaintiff’s right eye arising from the assault on him by Constable Ambrose has resulted in at least 95% loss of vision in that eye, and the associated and unchallenged inability of the plaintiff to engage in full time employment, I am satisfied that general damages in the amount of K90,000.00 are appropriate. In so finding I note:
    
    • I do not accept the inference Mr Uware sought me to draw from his questions of Dr Sungu that the plaintiff was required to have surgery to his eyes because of his age and associated deterioration in his vision. Rather, I accept Dr Sungu’s evidence that cataracts generally afflict persons over the age of 60 years, and that it is unlikely that the plaintiff suffered from macular degeneration warranting surgery at the time of the relevant events when he was only 51 years of age.
      
    • I do not accept that no evidence has been adduced by the plaintiff of emotional stress, frustration, and loss of enjoyment of life following the loss of vision in his right eye. In particular I note the evidence of the plaintiff’s wife Ms Yassah, particularly her assertions concerning the effect of the injury on the plaintiff and his family, and the fact that it is difficult for the plaintiff to no longer be the breadwinner for the family.
      
    • In any event, similarly to as was accepted in Aura v Papuan Airline Transport Ltd [1964] PNGLR 162, I am prepared to infer that the loss of vision in an eye would have a serious emotional effect on the plaintiff and would affect his enjoyment in life.
      
    • I also do not accept the implied assertions in the evidence of the defendants that because the plaintiff wears glasses his vision has returned to the position prior to the assault. Dr Sungu gave evidence that the plaintiff had been short-sighted and had required glasses, and the plaintiff gave evidence that he relied heavily on the vision of his left eye and required glasses for that eye. I accept this evidence of Dr Sungu and the plaintiff.
      
32. To the extent that there is a possibility that the plaintiff could undergo further vitreoretinal surgery on his right eye, the evidence before me at present is inconclusive. The fact that the plaintiff would apparently need to travel overseas to have such surgery, and the absence of evidence as to whether he is minded to do so, means that I am unable to form any conclusions in respect of whether his condition is likely to improve. It follows that the hypothesis of further vitreoretinal surgery is not a factor I will take into consideration in assessing general damages.
    
33. In respect of the plaintiff’s claim for exemplary damages, the Supreme Court recently in Independent State of Papua New Guinea v Kei [2024] SC2550 observed:
    

20. In determining whether to grant exemplary damages against the State it is also necessary for the court to have regard to s 12(1) of the Claims By and Against the State Act, 1996 which provides that (emphasis ours):

“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”.

21. The Supreme Court in Abel Tomba v The State [1997] SC 518 did not hold that exemplary damages should not be awarded against the State in any circumstances. The majority did express the view that a court must consider when exercising its discretion whether the State and therefore its people should be punished for the acts of a handful of policemen bearing in mind the State’s limited resources. Whilst acknowledging that exemplary damages against the State may be warranted in some cases, and may act as a lesson for police leadership, it suggested that the State has more important obligations.

22. The view that exemplary damages should be awarded against the individual police officer responsible only and not the State was reflected in a number of cases: Andale More and Ors v Henry Tokam & The State (1997) N1645; Peter Kuriti v The State [1994] PNGLR 263; and Wama Kints v The State (2001) N2113.

23. As the following cases demonstrate, however, the Courts have since shown an increasing willingness to award exemplary damages against the State in cases like the one before us.

24. In Koimo v The State [1995] PNGLR 535 Injia J awarded exemplary damages following an illegal raid on a village during which houses were burnt down, livestock killed, and property carried away. In doing so he held that (emphasis ours):

“The reasoning that, in general, awards of exemplary damages should not be made against the State, as opposed to awards made against individual police officers, unless there is evidence to show that the State sanctioned the raids in some form, such as under a direction or pursuant to a policy, is too restrictive... A restrictive approach should not be followed in awarding exemplary damages based on vicarious liability where there has been a violation of constitutional rights. In situations involving the acts of servants of the State, exemplary damages are awarded at common law where the action is oppressive, arbitrary, or unconstitutional. An award of exemplary damages serves to show the disapproval of the Court and the indignation of the public at the oppressive action of the servants of the State, requires that the State take appropriate remedial action, and adversely affects the reputation of the State.”

25. This and the dissenting view of Amet J in Abel Tomba, supra was adopted by Gavara-Nanu J in Kakipa v Nikilli (2002) N5689 at [55] to [73] in which he awarded exemplary damages for serious and blatant breaches of the constitutional rights of a woman who had been imprisoned for several months on the order of a Village Court, which had no such power. In doing so he said at [70] to [73]:

“... The State has to be held responsible for the actions of its servants and agents, the State is therefore liable to the plaintiff's claim for exemplary damages... The amount awarded in exemplary damages should reflect the Court's disapproval and condemnation of the total and callous disregard of the plaintiff's rights and dignity by the defendants...

As to the view that if exemplary damages are awarded against the State, it would not have any deterrent effect on the State, I beg to differ...

The law relating to exemplary damages must be appropriately applied to the circumstances of Papua New Guinea. Here, the financial considerations, particularly the capacity of the wrongdoer to pay exemplary damages is a very significant factor to be taken into account, as most State servants or officers who commit 'the torts' cannot afford to pay exemplary damages if they are personally ordered to pay such damages.”

26. In Wiwa v State (2012) N5271 a young man died from blood loss caused by a gunshot wound to his leg whilst in police custody. In awarding exemplary damages to his parents, Batari J said (emphasis ours):

“I am inclined to award exemplary damages against the oppressive, arbitrary or unconstitutional actions by the servants of the State. The behaviour of the policeman is an indication of the failing level of discipline within the police force, no doubt created by the failing in the top command of the police force and the State to properly train, fund and generally facilitate the performance of its servants. The award aims to punish the defendant so that it takes corrective measures to lift the disciplinary level of men and women of the police force and consequently, reduce and deter repeats of constitutional rights breaches.”

27. Similar views have been expressed by Cannings J. In Namba v Naru (2011) N4396 for instance the plaintiff was in a truck which was pulled over by a police patrol which then proceeded to assault its passengers. He ran off in fear and was shot twice in the leg, requiring amputation below the knee. At [12] Cannings J said:

“[T]he Commissioner of Police and the State – have obviously failed in their duty to train and educate the police officer in question on proper and acceptable methods of policing. The State, in particular, must be penalised for the wilfully unconstitutional actions of its officer. An award of exemplary damages will symbolise the indignation, and disgust, of this Court and the People of Papua New Guinea about what was done. The breach of constitutional rights was sufficiently severe to warrant an award of damages.”

28. In summary, there is no rule of law that prohibits the award of exemplary damages against the State for the conduct of one of its servants or agents. In considering whether to exercise the discretion the court must consider whether there has been a breach of constitutional rights so severe or continuous as to warrant exemplary damages.

34. I also note the decision of Cannings J in Kandakasi v Independent State of Papua New Guinea [2017] N6601. In that case the plaintiff was assaulted, arrested, detained for two days, charged and prosecuted by police for suspected involvement in a crime. As a result of the assault, he lost eyesight in one eye, lost four teeth and suffered other abrasions and bruising. The plaintiff in that case sought, relevantly, exemplary damages. Relevantly Cannings J observed:
    

29. ... The question to ask is whether the breach of the law by police officers a technical breach is or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases, exemplary damages are a matter of discretion.

35. It follows that this Court is empowered to award exemplary damages against the State. The question is whether an award should be made.
    
36. The defendants submit that no evidence was adduced by the plaintiff to support his claim of exemplary damages in the amount of K5,000.00. However, Constable Ambrose assaulted the plaintiff while Constable Ambrose was on duty as a police officer. The public has a right to expect protection from the police, and not to fear assaults of the nature perpetrated on the plaintiff. I am satisfied that the Constitutional rights of the plaintiff have been breached in such a severe manner as to warrant an award of exemplary damages of K5,000.00.
    
37. The defendants submitted that no evidence was adduced by the plaintiff in respect of his claim of punitive damages. I note that at the hearing no submissions were made by the plaintiff’s Counsel, either in writing or orally, concerning punitive damages. I make no award of punitive damages.
    
38. In his writ of summons the plaintiff has also sought special damages in the amount of K150.00. At the hearing however, Counsel for the plaintiff pressed for an amount of K1,350.00, being referable to other medical bills and transport costs. I further note that this amount was the subject of evidence of the plaintiff in his affidavit filed 17 April 2024. In my view however, it is not open to the Court to make an award of special damages exceeding K150.00, noting that this was the case pleaded by the plaintiff. The position would have been different if the plaintiff had left unquantified the amount of special damages sought in the Writ of Summons. I understand that the defendants accepted that the amount of K150.00 should be allowed as special damages, and I order accordingly.
    
39. Finally, I am not prepared to accept that the K10,000.00 paid by Constable Ambrose to the plaintiff by order of Yagi J in Constable Ambrose’s criminal proceedings should be taken into consideration in the present case. While I accept that this is a significant sum paid by Constable Ambrose and his family, it was part of the penalty ordered by Yagi J in convicting Constable Ambrose and is not relevant to the damages claimed by the plaintiff in these civil proceedings.
    
40. It follows that the plaintiff is entitled to a final award of damages as follows:
    
    • General damages, including damages for emotional stress, frustration and loss of enjoyment of life, in the amount of K90,000.00;
    • Exemplary damages in the amount of K5,000.00; and
    • Special damages in the amount of K150.00.
      
41. The plaintiff is further entitled to interest from the date of filing of the writ of summons in the amount of 2% on the total judgment sum of K95,150.00 from date of issue of writ of summons to date of judgment and until final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts & Damages) Act 2015.
    
42. The final issue for consideration is costs, which is an award in the discretion of the Court. Both parties accepted at the hearing that costs ought follow the event. Accordingly it is appropriate to order that the defendants pay the costs of the plaintiff on a party-party basis, to be taxed if not otherwise agreed.
    

THE COURT ORDERS THAT:

1. Judgment be entered against the defendants in the following sums:
   • (a) K90,000.00 as general damages, including for emotional stress and frustration, and loss of enjoyment of life;
   • (b) K5,000.00 as exemplary damages; and
   • (c) K150.00 as special damages.
     
2. The defendants pay interest at the rate of 2% on the total judgment sum of K95,150.00 from the date of filing of the writ of summons to the date of judgment and until final settlement pursuant to sections 4 and 6 of the Judicial Proceedings (Interest on Debts & Damages) Act 2015.
   
3. The defendants pay the plaintiff’s costs on a party/party basis, to be taxed if not agreed.
   

____________________________________________________________________
Ms K Lafanama: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants