Wani v Deflin [2024] PGNC 162; N10818 (17 May 2024)

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AND:
TONY WAGAMBIE, ACTING COMMISSIONER, ROYAL PAPUA NEW GUINEA CONSTABULARY
Fifth Defendant

ASSESSMENT OF DAMAGES – unlawful assault by Police- breach of constitutional rights – slander – whether actionable slander - elements of actionable slander not met- principles for assessing damages considered – approach to awarding damages - one or separate award – caselaw on similar cases considered – damages awarded.

Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182
Dope v Malai (2012) N4574
Gregory Tavatune v. Dr. Novette, Christopher Pasmat, Danny Gre and Elias Kapaware of Vanimo General Hospital (2012) N4611
Kepson v Lati (2023) N1047
Kolokol v Amburuapi (2009) N3571
Kunong v Paradise Private Hospital Ltd (2022) N9698
Kusa v Motor Vehicles Insurance (PNG) Trust [2003] N2328
Madring v Santi Forestry (PNG) Ltd (2015) N5908
Mel v Pakalia (2005) SC790
Motor Vehicles Insurance Ltd v Kiangua (2015) SC1476
Motor Vehicles Insurance Limited v Kol (2007) SC902
Pitu v Kale (2022) SC2261
Rimbunan Hijau (PNG) Ltd v Ina Enei [2017] SC1605
Solmein v Lim (2020) N8450
Tindaka v Kambu (2012) N4853
Walup v National Housing Corporation (2019) N8065
Wereh v Wamuk (2023) SC2487

Claims By and Against the State Act 1996, s5
Constitution ss35, 36, 37, 42, 44 and 49
Defamation Act Chapter 293, ss 2, 3 and 4.
Judicial Proceedings (Interest on Debts and Damages) Act 2015

Trial on assessment of damages where the plaintiff seeks damages following default judgment for negligence, defamation, vicarious liability, and breach of constitutional rights.

Mr. Lance Okil with Ms. Rose Kelly, for the Plaintiff
No Appearance for the First to Fourth Defendants
Ms. Sharon Vate, for the Fifth and Sixth Defendants

3. On 22 June 2010 the plaintiff gave notice of intention to sue the State in compliance of Section 5 of the Claims By and Against the State Act 1996 which was accepted and conveyed by the Solicitor General by letter dated 06 August 2010. The plaintiff filed his Writ of Summons and Statement of Claim on 22 February 2011. On 17 March 2011 the State filed its Notice of Intention to Defend the proceeding. Liability against the defendants was established by default in failing to file a Defence. Default judgment was entered on 12 August 2011.

4. On 04 and 19 August 2010 the first, second, third and fourth defendant policemen involved in the assault of the plaintiff were convicted by the Boroko District Court and punished with K200.00 fine, and each ordered to compensate the plaintiff K333.30 within two weeks, in default a sentence of six (6) months with hard labour at the Bomana Correctional Services is to be served. The Certificates of Convictions are contained in the plaintiff's affidavit filed 23 June 2011 marked 'P1' at Annexure B1-B3.

5. On 16 Nov 2023 the trial on assessment of damages proceeded part heard. The plaintiff also gave oral evidence of the assault by the police and the medical attention he sought. All Affidavits relied on mostly by the plaintiff were tendered with two marked for Identification due to objections by the State on hearsay on the medical reports relied on by the plaintiff. Written submissions were to be filed on or before 24 November 2023 with the second part of the trial scheduled on the 24 November 2024.

6. The plaintiff's claim is that liability has been established by the default judgment and the lack of evidence to counter the plaintiff's evidence on assessment of damages. The plaintiff's claim is that the factual matters giving rise to this cause of action should be regarded as proven and the Court proceed with assessing damages.

The plaintiff claims the following in his prayer for relief at paragraph 28 of his Statement of Claim:-

7. The defendants did not file any defence and were held to be in default and judgement found in favour of the plaintiff on 12 August 2011.
The defendants took no issue with the delayed trial nor with the issue of vicarious liability.

8. The Plaintiff tendered the following Affidavits which were accepted into evidence and marked as exhibits:-

9. The State raised objections to the medical reports annexed 'A1' and 'A2' to the affidavits of the plaintiff filed on 23 June 2011 and 'B’ and 'C' of 25 March 2014 on grounds of hearsay that the medical doctors who authored the reports had not deposed to an affidavit. The medical reports were marked for identification and when the second part of the trial resumed, Mr Okil for the plaintiff cited the Supreme Court case of Pitu v Kale ( 2022) SC2261 which held that medical reports that are addressed “to whom it may concern” was rightly annexed to the respondent's affidavit because it was an open letter and not their independent or counter medical report. The medical reports in this case were also addressed “to whom it may concern” and so allowed into evidence and marked as 'P1' and 'P6' respectively.

10. The defendant did not tender any Affidavit and made submissions on the plaintiff’s evidence and on issues of law arising.
Plaintiff's evidence

11. Doctor Paki Molumi made the following observations regarding the plaintiff's physical injuries and medical condition in his medical report dated 12 March 2014.

"I personally examined him when he presented to me on 26/02/2014. He still complains of persistent nasal blockage and partial hearing loss on both sides. Examinations shows slight depressing of the right nasal bridge and intranasal examination shows deviated nasal septum to the left side. His external ear and ear drums are normal on both sides. Audiometry showed mild sensoneural hearing loss...there is no improvement of the sensorineural component in both ears.

In my opinion, the findings to the nose shows that his nasal septum has deviated to the left side causing obstruction to the nasal passage due to blunt trauma applied to the right external nose. He has moderate sensoneural hearing loss in both ears which will remain permanent.

He will need surgery to correct the nasal septal deviation to open his nasal passage. He will be able (sic) manage day to day activities with this level of hearing now. In normal persons, hearing deteriorates with age and for Mr. Wani’s case he may experience this early, then he will require hearing Aid to assist him.” (Emphasis mine)

12. Dr Molumi examined the plaintiff and made his findings two years after the plaintiff's last medical report of 22 March 2011, from an Ear Nose and Throat specialist. The medical report is that the after two years the plaintiff still suffered moderate hearing loss and issues with breathing due to the deviation to the plaintiff's nasal septum both of which were the result of the assault by the first to the fourth defendants. This injury would get worse with age if no corrective surgery is done. That the hearing loss will remain permanent.

13. In his current affidavit marked 'P7' dated 07 August 2023, the plaintiff deposes that he still suffers from hearing loss and breathing issues. I accept the plaintiff's evidence that his hearing loss and breathing issues, after 13 years, have now become permanent. I also noticed when he gave oral evidence that he struggled at times to hear counsel.

14. The plaintiff produced three medical reports from three different times all confirming the assault and its effect on his hearing and breathing.
The evidence of Teng and Bonny Gelu attests to the plaintiff good character.

15. The defendants did not rely on any affidavits. The defense claim is that the onus of proof is on the plaintiff to prove his injuries and the extent of those injuries.

16. Both Counsels provided a good analysis of the caselaw which they considered relevant to addressing the heads of damages claimed by the plaintiff.

17. The plaintiff submitted that the following breaches should be considered as a distinct occasion of breach-

18. Mr Okil for the plaintiff submits the plaintiff be awarded K265,000.00 plus costs and interest for the injuries sustained by the plaintiff comprising of:-

19. The State submits only one award of damages for negligence and breach of constitutional rights should be awarded for both causes of action to avoid duplicity of award. For defamation, the defendants submit the material facts giving rise to defamation and the injuries to reputation and character are not particularised in the Statement of Claim and should be disregarded.

20. Ms. Vate relied on caselaw and submitted that the Plaintiff should be awarded damages as follows:-

21. The following factual matters are uncontested, and the factual matters stated at paragraph 12 of the plaintiff's counsel's submission are reproduced below:-

22. The issues for deliberation are the manner of assessing damages either separate or one award for the causes of action in common law and the Constitution and what damages to award?

23. Once default judgement on liability is entered, liability as pleaded by the plaintiff is deemed to be proven unless the defense can prove the pleadings do not disclose a reasonable cause of action or the default judgement is entered irregularly for instance a competency issue such as a time bar. See Mel v Pakalia (2005) SC790 and Gregory Tavatune v. Dr. Novette, Christopher Pasmat, Danny Gre and Elias Kapaware of Vanimo General Hospital (2012) N4611 and Motor Vehicles Insurance Ltd v Kiangua (2015) SC1476.

24. Given the lack of contest to the default judgement by the State, I accept that liability is proven and the plaintiff's uncontested evidence of the events giving rise to this cause of action.

25. The general principles for assessing damages following the entry of default judgement are summarised by his Honour Kandakasi J (as he was then) in Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182 are as follows:

26. Further, in Kunong v Paradise Private Hospital Ltd (2022) N9698, his Honour Shepherd J at [50] and [51], relied on the decision by the Supreme Court in the personal injury case of Motor Vehicles Insurance Limited v Kol (2007) SC902 in upholding the principle of restitutio in integrum which I adopt in my deliberations as well and these are: -

"The purpose of an award of general damages is to compensate a plaintiff for the pain, suffering, humiliation, distress and inconvenience caused by the unlawful actions of a defendant. General damages are compensatory in that the Court endeavours by way of an award of money to put the plaintiff as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty: see Limitopa v The State [1988-89] PNGLR 364; Figa v Agong (supra)."

(4) At the same time, it is accepted that an order for payment of money cannot possibly fully restore a condition of physical injury or loss by a person. In other words, assessing damages for personal injuries is not a matter of mathematics. Rather, it is an estimate in money terms as to what one’s loss or injury is, with the aim of trying to restore the loss as is nearly as is possible to do. This therefore leaves much room for difference of views in assessment of damages in any one given case.

(a) the prevailing circumstances; especially the economic conditions at the time of the assessment of damages in the country as well as the views of the community as to what is fair and reasonable compensation;

(b) general awards of damages in previous similar or comparable cases and arrive at an award of damages that is similar to the awards in the comparable verdicts. This does not however mean that the Courts must be oblivious to changes in circumstances which have occurred subsequent to awards of damages made in past comparable verdicts. Instead, the Courts are duty bound to take into account such things as the rise in inflation and changes in the economy."

27. As I have stated earlier, I am satisfied that the plaintiffs has suffered the damages he claimed in his Statement of claim. My role now is to consider the various heads of damages claimed, by considering the relevant evidence regarding the nature of the injuries sustained, relevant caselaw and will proceed to award appropriate damages as nearly as possible enable the plaintiff to be restored to his original position as monetary damages can allow.

28. In terms of considering whether I should award common law damages separately from compensation arising from breaches of constitutional rights, there are two approaches to take. One is to award a global sum for both causes of action as in the case of Tindaka v Kambu (2012) N4853 where the Court awarded one award for both causes of action. The Court considered the actions were merged by the same set of facts. The other option is to award separate heads of damages for each cause of action as was done in Dope v Malai (2012) N4574 and Kepson v Lati (2023) N10473 where separate damages were awarded for the two separate causes of action. In Kepson v Lati at [35] his honour Makail J clarified:-.

"...there is no hard and fast rule on how to assess damages for breach of constitutional rights and a useful starting point is to consider awards in past cases of similar nature. Further, it is necessary to avoid duplicity of awards as the plaintiff has sought damages for unlawful arrest, false imprisonment, malicious prosecution and trespass to property and person and it is fair and appropriate that a sum less than what has been awarded for those claims should be awarded."

29. However, where it is warranted, common law damages can be treated separately from constitutional breaches in awarding damages, I think it is proper to proceed separately as though the two causes of action arise from the same set of facts, they concern breaches of constitutional rights as well. I adopt with respect his Honour Narakobi J's decision in Solmein v Lim (2020) N8450 where he refered to his honour Cannings J's decision in Kolokol v Amburuapi (2009) N3571 and held:-

"(t)he 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."

30. I will proceed to award common law damages separate from the constitutional breaches as I agree that it will enhance the enforcement, protection and promotion of human rights and freedoms of the plaintiff which were breached by the Police.
I turn now to consider the various heads of damages;

31. The plaintiff claimed a separate head of damage for pain and suffering however has not persuaded me as to why this head of damages should be separate from the general award for assault pain and suffering. I have therefore grouped this under one head of damages as general damages for unlawful assault, pain and suffering as it is from the unlawful assaults that the plaintiff suffered pain and suffering.

32. In comparing earlier cases of Wangare (2018) N7195, Kuefa (2012) N4855, Dope (2012) N4574, Wanis ( 2021) N9396 and Kepson (2023) N10473, the assault suffered by the plaintiff is in similar category to the plaintiffs in these cases in suffering physical bodily injuries and being assaulted by the Police and detained without charge similar in some of the cases mentioned but there are some distinctions to the manner and outcome of the plaintiffs assaults.

Case	General Damages Awarded	Distinguishing fact
Wanis (2021)	K8000.00	Assaulted at police car park when he went to make enquiries. Doctor's report about eye injury but no current medical report produced in evidence.
Wangare (2018)	K10,000.00	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. He was arrested and detained overnight in a police lockup without being charged and without being taken before a court.
Kuefa (2012)	K2000.00	Police ordered the plaintiff out of the house at 8:30pm, blindfolded him and took him to the Police station. No medical evidence of damages sustained. Detained for 13 days without charge
Dope (2012) N4574	K20,000.00	Police assaulted plaintiff at a public market for refusing to pay a spot fine for selling betelnut. Detained six days without charge, medical treatment and food. As a result of the assaults, he suffered permanent injuries to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome.
Kepson (2023)	K8000.00	Kepson was verbally abused at the police station in front of 50 people about his character by a policeman at the station and detained for 6 hours and released without charge. The Court applied Wanis.

34. Under common law, the tort of trespass to the person (assault) and false imprisonment were committed. The plaintiff was refused medical attention. He was detained until daybreak when released after his uncle inquired at the Police station. From the evidence I infer he was detained for 4 or 5 hours. The medical report at that time indicated a dislocation of the bridge of his nose which would cause breathing issues and hearing impairment in the future. Compared with the above cases the plaintiff was ordered out of his home at about 12:30am, put in the police vehicle, taken a short distance and assaulted with fists, boots and timber on a public roadside, until he lost consciousness.

35. In this case, I view the range of general damages the plaintiff would be entitled to in the vicinity of K10,000.00 in Wangare and K20,000.00 in Dope. In Dope, the plaintiff's human rights were breached, and he suffered permanent injuries to several places on his body. Here, the plaintiff's human rights have been breached, and he has permanent moderate hearing loss and difficulty breathing which the medical report points to further corrective surgery or the hearing loss getting worse earlier in his life then would be ordinarily expected which would result in him in need of hearing aid. On that basis, I use the award of K20,000.00 as the starting point but consider the impact on the quality of life of the plaintiff due to his hearing loss and breathing issues and the rise in the cost of living due to inflation^[1]. I consider too that the primary purpose of awarding damages is to restore the plaintiff as nearly as possible to his post assault state. The plaintiff has not provided any evidence of the cost of the corrective surgery referred to in the medical reports nor whether it is available in-country, Thus, doing the best I can, and considering all these factors I award an amount of K50,000.00 in general damages for physical pain, suffering and loss of amenities in the plaintiff's common law cause of action for trespass to the person.

36. I consider the entry by the police on or about 31 March 2010, arbitrary and a gross invasion of privacy when they went into his house, opened his bedroom door accused him of theft and ordered him out. The home is supposed to be a sanctum where individuals retire to relax and feel safe. I find the actions of the Police in barging in without a warrant a gross breach of the plaintiff and his family's right to privacy guaranteed by section 49 of the Constitution.

37. The plaintiff's assault and beatings were obviously disproportionate to any resistance he may have put up and his detention without charge is a breach of his constitutional rights to the full protection of the law.

38. Compensation for each breach of constitutional rights ranges from K1000.00 to K5000.00 depending on the gravity of the assault and its effect to the person. K5000.00 per breach was awarded in Kolokol as his injuries were permanent as he was shot in the leg when caught by the Police. He had ran because he was scared but had not committed any crime. In Dope K3000.00 per breach was awarded given the permanent nature of his injuries and his detention for six (6) days, I think those facts can be distinguished with this case. However, since I consider the home invasion a serious breach, I exercise my discretion to award K3000.00 for breach of privacy and given the permanent nature of his injuries, I award K2,500.00 for each of the other constitutional breaches. I distinguish this case with Dope in that here the plaintiff was detained for less than five hours whereas Dope was detained for 6 days. I award compensation pursuant to Section 58 of the Constitution for breach of constitutional rights as follows: -

38. The total damages awarded for the breach of the plaintiff's constitutional rights is K15,500.000

40. The plaintiff seeks K150,000.00 for defamation, He alleges that the words uttered by the first to the fourth defendants were slanderous and had the effect of tarnishing his professional reputation as a Lawyer serving the State with the State Solicitor's Office.

41. The Defamation Act Chapter 293 Sections 2, 3 and 4 defines two essential aspects of defamation reads:-

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which–

(a) the reputation of that person is likely to be injured; or
(b) he is likely to be injured in his profession or trade; or
(c) other persons are likely to be induced to shun, avoid, ridicule or despise him,

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

(a) by spoken words or audible sounds; or
(b) by words intended to be read by sight or touch; or
(c) by signs, signals, gestures or visible representations,

publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.

(a) in the case of spoken words or audible sounds, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed; and
(b) in the case of signs, signals or gestures, the making of those signs, signals or gestures so as to be seen or felt by, or otherwise come to the knowledge of, a person other than the person defamed; and
(c) in the case of other defamatory matter–

(i) exhibiting it in public; or
(ii) causing it to be read or seen; or
(iii) showing or delivering it; or
(iv) causing it to be shown or delivered,

with a view to its being read or seen by a person other than the person defamed."

42. Section 24 of the Defamation Act limits civil liability to published defamation as follows:-

“24. Defamation Actionable.
The unlawful publication of defamatory matter is an actionable wrong.”

The particulars required by Rule 29 in relation to a statement of claim shall include—

(a) sufficient particulars of the publications in respect of which the proceedings are brought to enable the publications to be identified; and

(b) where the plaintiff alleges that the matter complained of was used in a defamatory sense other than its ordinary meaning—particulars of the facts and matters on which he relies in support of that sense.

44. I analysing the provisions of the Defamation Act, Baker and Order 8 rule 84 NCR, the elements of actionable slander which the plaintiff must prove are:
The alleged slanderous words must be:-
1) uttered words, signs or gestures,
2) spoken or made in the presence of third parties (publication),
3) has a tendency to injure the plaintiff’s reputation, and
4) the particulars of defamation must be specifically pleaded.

There is no dispute that words were uttered or spoken by the first to fourth defendants, which were allegedly slanderous and had a tendency to injure the plaintiff is reputation. The issue for consideration is whether they were:-
1) sufficiency pleaded and
2) published

45. The State Counsel submits that the plaintiff's cause of action for defamation should be struck out because the plaintiff has not sufficiently pleaded the defamation allegation in his Statement of Claim contrary to the requirements of Order 8 rule 48 NCR.

46. I do not agree with the State Counsel's submissions. The plaintiff did plead the alleged slanderous words uttered in paragraphs 12, 13, 17 and 24 of the Statement of Claim. The alleged slanderous words were pleaded to be uttered by the first, second, third and fourth defendants while they were abusing their powers on three occasions as follows:-

During these two first occasions his wife, two young sons aged one and three and 5 other relatives who live with him were present and the adults would have heard the words and understood their innuendo.

47. The crucial issue for determination for slander to be actionable is whether the element of publication is satisfied as a matter of law and evidence. I turn now to address this aspect.

48. Defamation is clarified in Baker v Lae Printing Pty Ltd [1979] PNGLR 16 to mean an imputation by which the reputation of a person is likely to be injured in his profession or trade. An imputation does not have to be believed to be defamatory; it must tend to injure the person's reputation.

"A defamatory imputation for the purposes of this case is an imputation concerning a person by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which the other persons are likely to be induced to ridicule him. (See s. 6 of the Defamation Act 1962.)

An imputation may be defamatory whether or not it is believed by those to whom it is published (see Hough v. London Express Newspaper Ltd.[xxv]2, per Goddard L.J., affirmed in Morgan v. Odhams Press Ltd.[xxvi]3).

To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. The fact that none of the witnesses called to give evidence may have thought any the less of the plaintiff is immaterial to the question of liability."

49. In Baker v Lae Printing Pty Ltd defence counsel raised the common law defence to slander of vulgar abuse but the Court overruled that on the basis that it was not available in that case as it was a case of defamation by libel. This defence would be available to the State but for the default judgement and also it was not raised. Thus, I do not consider this factor in my deliberations.

50. However, I find the cases relied on by the plaintiff's Counsel relate mostly to libel and are not helpful in deliberating on the legal aspects of actionable slander. Libel is the written form of defamation and has wider circulation and tends to remain longer than slander which are uttered words and can be forgotten with the passage of time or change in circumstances.^[2] The awards of damages in the libel defamatory cases relied on for the plaintiff do not provide sufficient guidance.

51. For slander to be actionable it must be published by being heard by another person whose opinion of the plaintiff causes him/her to doubt the reputation or character of the plaintiff. Section 4 of the Defamation Act defines publication as spoken words in the presence and hearing of a person other than the person defamed.

52. Of the two pleaded utterances two were within the hearing of the plaintiff's eight family members who are his immediate family and six relatives. On the third occurrence, the words were uttered amongst the police and heard by the plaintiff.

53. To constitute an actionable tort in slander, the plaintiff must prove the words uttered were heard by persons other than himself and caused or had a tendency to damage or injure his reputation and profession. The plaintiff tried to discharge the onus of proof for damage or injury to reputation with the affidavits of Bonny Gelu and Dr Teng Waninga. However, their evidence are not direct evidence but are after the fact. I find this does not assist the plaintiff establish the requirement under Section 4 of the Defemation Act of publication which requires direct evidence from a person who heard the alleged slanderous words.

54. There are no affidavits from any of the plaintiff's family members who heard the utterances to sufficiently discharge the elements of slander and defamation. The plaintiff has not proved publication of the alleged slanderous words, which is an essential element to establish a claim of actionable slander and would constitute defamation.

55. The evidence of Bonny Gelu is a character reference about the plaintiff's work ethics and falls short of stating what effect the uttered alleged slanderous words had on the plaintiff's professional reputation and work. Bonny Gelu's evidence rather confirmed to me that the plaintiff's professional standing and impact at work was not adversely affected nor injured because he was promoted to Principal Legal Officer-Procurement.

I do take note of the Court's decision in Baker v Lae Printing Pty Ltd that for defamation to be established the law looks to the tendency of the alleged slanderous words to defame the person's good character and reputation. The plaintiff must prove through direct witness evidence the defamatory meaning the uttered words conveys in their ordinary and natural sense and without a forced or constrained construction. See Simmons v Mitchell [1880] UKLawRpAC 45; (1880-1881) 6 App Cas 156 (26 November 1880).

56. In applying Sections 2,3,4 and 24 of the Defamation Act, the third occasion of the alleged defamation where the plaintiff heard the words before he lost consciousness are clearly not regarded as 'published’ by Section 4(a) and excluded as non-actionable slander by section 24.

57. The slanderous words must be heard by people other than the plaintiff. In this case on the first two occasions, the words were uttered in his residence and heard by his family members who were present. In the recent case of Kepson, his honour Makail J disallowed the slander claim because the plaintiff did not produce evidence from those who heard the insult and what effect it had on their opinion of the plaintiff.

58. Further, the broadcast range of the slanderous words was within his home amongst his family, and when he was assaulted by the roadside and the public were around. On this second occasion, there is no evidence that anyone knew him or that the public then were told by the police that he is a Lawyer. I am not satisfied that the impact of the slanderous words are as wide as in Coyle PNGLR 17, Lambu N3082 or Pitil N2422; hence I do not accept that defemation has been proven on a balance of probabilities and thus do not accept the amount of K150,000.00 submitted for damages.

59. After considering the evidence and the legal elements to establish actionable slander especially that of publication, my judgement is that the plaintiff has not discharged his burden of proving defamation by slander on a balance of probabilities. For slander to be defamatory it must be published through the direct evidence of persons who heard the words. My view is that the plaintiff's injuries are more of mental distress and anguish that he felt because of his injuries and his perception of its impact on his profession as a Lawyer.

The plaintiff's evidence is that he felt embarrassed and anxious while at work. I accept this evidence which to me concerned his perception of what he thought and felt when he resumed duties at the State Solicitor's Office after the assault. I find this may have been more pronounced for him soon after he resumed work. In deciding on a suitable award for damages for mental anguish and distress, I am guided by comparable mental distress cases of Madring v Santi Forestry (PNG) Ltd (2015) N5908, Walup v National Housing Corporation (2019) N8065 and Wereh v Wamuk (2023) SC2487 where a nominal amount of up to K5000.00 was the benchmark for mental distress award where there was no medical evidence provided about stress and anxiety.

The plaintiff's medical report does not provide a report about the psychological aspect of the injury on the plaintiff. The plaintiff bears the onus of proof.
Hence, I am not inclined to award damages for defamation but to award the nominal award of K5000.00 for mental distress and anguish.

63. The plaintiff deposes in his affidavit marked 'P7' that he visited three (3) different hospitals on five (5) occasions and spent K5000.00, a private hospital, Paradise Private Hospital during his initial medical attention after he was released from the cell, Port Moresby General hospital, and the Goroka General Hospital. He claims K8000.00, including costs he incurred in ensuring the first, second, third and fourth defendants were charged and convicted. He produces no evidence except a K20.00 receipt for production of a medical report from the Goroka General Hospital.

64. Ms Vate for the State submitted that in the absence of receipts submitted that the Court award 50% of the K8000.00 sought for special damages.

65. An award for special damages is usually granted where it is supported by documentary evidence of expenses incurred. The Court has in some instances applied its discretion to award damages where the evidence, for instance about medical attention or travelling costs, is a logical outcome to the plaintiff pursuing their case. See Kusa v Motor Vehicles Insurance (PNG) Trust [2003] N2328.

66. Here, the plaintiff has adduced evidence from work and his family which both attest to his good character and professional standing.
Based on that, I accept the plaintiff's evidence of the costs he was incurred. For special damages, I award full amount claimed by the plaintiff in special damages for the sum of K8000.00

67. The purpose of exemplary damages is to make an example or convey society's dismay and to punish the tortfeasor and defer future tortious conduct. The State submits that the individual policeman should be individually awarded the exemplary damages. The evidence is that they have been charged and convicted. There is no evidence, if they are still active members of the Police.

68. I note from affidavits of service filed when the writ of summons was served that the defendant policeman received service at the Six Mile Police Station. At least that was the case for the second, third and fourth defendant. There is no evidence that they have been discharged from the Police Force or whether they compensated the plaintiff or paid the fine as ordered by the District Court. Both parties did not adduce evidence to clarify these facts.

"The purpose of an award of exemplary damages is to punish the defendant and vindicate the distinction between a wilful and an innocent act (Latham v Henry [1997] PNGLR 435). The purpose is not to unjustly enrich a plaintiff, but symbolise public indignation of the defendant's conduct (Peter Kuriti v The State [1994] PNGLR 262). I have also considered the view expressed by Judges in a number of cases that if exemplary damages are to be awarded for human rights breaches by police officers, it is the individual police officers who should pay – not the State (eg Andale More and Manis Andale v Henry Tokam and The State (1997) N1645)."

70. However, his Honour went on to award exemplary damages against the State because he considered the policemen would lack capacity to pay and also did not want to cause more distress to the plaintiff in following up on the payment of the award and so the exemplary damages were awarded against the State.

In Rimbunan Hijau (PNG) Ltd v Ina Enei [2017] SC1605 the Supreme Court considered that:-

"The main purpose of awarding exemplary damages is dual in purposes. The first is to punish and the second is to deter the party against whom the award is made as well as others from engaging in future and further such conduct or behaviour."

71. The first, second, third and fourth defendants were charged and convicted of the unlawful assault. There is no evidence that they paid the fines or compensated the defendants. Convictions fulfil one of the purposes of exemplary damages and conveys the dismay of society by their convictions and in my view punished and should deter the plaintiffs or their colleagues for abusing their powers. Given the lack of evidence about the consequences of the order which both parties have not adduced, I do not make any award for exemplary damages as I consider the convictions sufficient to symbolise the public indignation of their conduct.

72. Interest is awarded at 2% pre and post judgement interest where the State is a party pursuant to the Judicial proceedings (Interest on Debts and Damages) Act Chapter 52. I consider appropriate in the circumstances an award for pre-judgement interest from the 22 February 2011 being the date the writ was filed to date of decision, 17 May 2024 which comes to 4833 days (about 13 years).
Applying the interest formula formulated by his Honour Cannings J in Dope

A is the amount of interest.
K78,500.00 x 0.02 x13 = K20,410.00
I award pre-judgement interest of K20,410.00

73. Post-judgment interest is discretionary pursuant to Section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(1) of the National Court Rules. I make an award of 2% on the post judgement interest to alleviate any physical pain and suffering the plaintiff may incur by his permanent injuries where there is delay in paying the judgement debt. The damages are to restore the plaintiff as nearly as possible, where there is delay by the State, it is fair that interest is paid on the judgement debt as it may remain outstanding from time to time.

Further, I exercise my discretion to order that the post judgement interest is to commence 30 days after service of this judgement. This is to allow the State to consider paying the judgement debt within 30 days. See Section 6(4) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

74. The Judicial Proceedings (Interest on Debts and Damages) Act 2015 being an Act of Parliament supersedes the Order 12 rule 6(2) NCR which prescribes 8% because, the defendant is a State agency and sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 requires 2 % to be applied on pre and post judgment damages award. Hence an interest rate of 2% is applied for the judgement.
COSTS

75. Costs follow the event. See Order 22 rule 11 National Court Rules. Reasonable costs of the proceedings are awarded to the plaintiff to be paid by the State on a party/party basis to be taxed, if not agreed.

ORDER

(2) Post-Judgment Interest at the rate of 2% on the total judgment sum of K98,910.00 is to commence 30 days after service of this judgment on the total judgment sum of K98,910.00 or part thereof as may remain unpaid, from time to time until it is fully paid.

(3) The defendant shall pay on a party/party basis the plaintiff’s reasonable cost for the whole of this proceeding, including all costs previously ordered to be paid by the defendant, such costs are to be taxed; if not agreed.

(4) Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.

Wang Dee Lawyers: Lawyers for the Plaintiff
No appearance for the First to Fourth Defendants
Office of the Solicitor General: Lawyers for the Fifth and Sixth Defendants

National Court of Papua New Guinea

Wani v Deflin [2024] PGNC 162; N10818 (17 May 2024)