N11008
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 82 OF 2016

BETWEEN
JOEL JEROME
Plaintiff

AND
SAMUEL PISA
First Defendant

AND
SAMSON LILIOME
Second Defendant

AND
EDWARD SOSTHEN
Third Defendant

AND
GARI BAKI, Commissioner Police
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Alotau: Toliken J
2024: 	21st September

DAMAGES – assessment - breach of human rights – three distinct instances – damages awarded for each instance of breach – exemplary damages – breach nor continuous but severe – exemplary damages awarded. 

Cases Cited:
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Mel v Coleman Pakalia (2005) SC790
Yooken Paklin v The State (2001) N2212
Albert Baine v The State (1995) N1335
Peter Wanis v Fred Sikiot and The State (1995) N1350
Yange Lagan and Others v The State (1995) N1369
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
MVIT v Tabanto [1995] PNGLR 214
Waima v MVIT [1992] PNGLR 254
MVIT v Pupune [1993] PNGLR 370
Jonathan Mangope Paraia v The State (1995) N1343
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Michael Buna v The State (2004) N2696
Komba v Duwaba [2006] N2979
Kolokol v The State (2009) N3571 
Meta v The State (2012) N4735
Westcot v Motor Vehicles Insurance Ltd (2008) N3565
Abel Tomba v The State (1997) SC518 
Kakipa v Nikilli (2002) N5689
Namba v Naru (2011) N4396 
Wiwa v State (2012) N5271

Counsel:	
T. Ilaisa, for the Plaintiffs
Nil Appearance by and for the Defendants. 

JUDGMENT

21st September 2024

1.	TOLIKEN J:	The Plaintiff claims damages for personal injuries occasioned on him by the First, Second and Third Defendants, who are serving members of the Royal Papua New Guinea Constabulary and for breaches of human rights. The Fourth and Fifth Defendants are the Police Commissioner and the State respectively and are sued vicariously for the actions of the First, Second, and Third Defendants. 

2.	The Defendants did not file a Notice of Intention to Defend let alone a Defence, hence, an ex parte default judgment was entered against the Second, Third, Fourth, and Fifth Defendants on 20 October 2017. No judgment was entered against the First Defendant as he died earlier in July 2016 before the matter was heard.

3.	I conducted a hearing on the assessment of damages on 13th August 2018 and heard submissions. The Defendants again did not appear despite being advised of the date of hearing by the Registry by letter dated 07 August 2018. Despite this, the Fifth Defendant (the State) filed a written submission on the hearing date (see Doc.# 24). Before that they filed some affidavits in their defence. I will not consider any affidavit material filed by the defendants as these were not tendered formally into evidence. Similarly, I will not have regard to the submission as without counsel it is not properly before the Court.

Background

4.	The brief uncontested facts are these: on Friday 08 May 2014, at about 10.50a.m, the Plaintiff’s father was taken to the Alotau Police Station over a motor traffic accident he was involved in earlier that morning. The Plaintiff accompanied his father to the Station and waited outside while his father was being processed by traffic officers.  

5.	After a while the First Defendant approached the Plaintiff and asked him at what speed his father was driving. The Plaintiff replied that he did not know and that only the driver of the vehicle would know. Without warning the First Defendant immediately started to punch him on his chest and face. Fearing for his safety the Plaintiff ran into the Police Station where his father was. The First Defendant followed him into the traffic Reception counter and punched him on his chest. He then lifted the Plaintiff and threw him on the reception counter where the Second and Third Defendants were standing. The Second and Third Defendants forcefully pulled him over to their side behind the counter as the Plaintiff struggled to free himself. The Second Defendant then wrapped a police uniform tightly around the Plaintiff’s head and they dragged him out of the Station onto the car park. There they rained punches and kicks on him with their fists and boots. The Third Defendant then picked up a wheel spanner and hit the Plaintiff five times with it. At that moment the Plaintiff’s father came out of the Station and shouted at the officers to stop assaulting his son. The three defendants stopped and walked back into the Station.

6.	The Plaintiff attended the Alotau General Hospital the next day where he was seen by Dr. William Mataio and was treated for his injuries. A medical Report by Dr. Mataio dated 13 May 2014 (Annexure “A” to the Dr. Mataio’s) affidavit dated sworn on 06/07/2026 and filed on 08/07/2016, Doc No.4) showed that the Plaintiff sustained the following injuries:

(a)	 Swelling at the right and left eyes.
(b)	 Bruising and swelling at both lower limbs.
(c)	 Head swelling and tenderness at the left temporal region. 

7.	The above facts are not contested, but if they were the evidence in rebuttal is not before the Court as I have said above.

8.	The Plaintiff claimed the following:

(a)	 Damages for breach of Constitutional rights under ss 36 (1) (Freedom from inhuman treatment) and 41 (Proscribed acts) under sections 57 and 58 of the Constitution.
(b)	 Exemplary damages.
(c)	 Special damages.
(d)	 Interest.
(e)	 Costs.
Issues
9.	The issue for my determination therefore is whether the Plaintiff has proven his claim on the different heads of damages he is claiming under. 
Principles On Assessment Of Damages
10.	Default judgment had been entered and the Plaintiffs have not challenged it in any meaningful way. Judgment on liability therefore stands undisturbed.

11.	While it is settled that the court may revisit liability in appropriate cases, the instant case is not in my view one such case (Mel v Coleman Pakalia (2005) SC 790). I am satisfied that the facts and cause of action are pleaded with clarity hence liability has been proven on the required standard. There is therefore no need to revisit the issue of liability.

12.	These principles of assessment of damage are neatly summed up by the Supreme Court in Mel v Pakalia (supra.) (Los, Jalina and Cannings JJ). They are:
•	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, 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, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, Lenalia J)
•	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, 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, 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, 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, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, Woods J; MVIT v Pupune [1993] PNGLR 370, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, 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, Injia J)
•	In (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, Jalina J also held that 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. (See also Michael Buna v The State (2004) N2696, Cannings J) and Komba v Duwaba [2006] PGNC 218; N2979, Cannings J)

Evidence

13.	The Plaintiff relied on his Affidavit in Support and Dr William Mataio’s affidavit (supra.)  Dr Mataio’s evidence essentially corroborates the Plaintiff’s evidence of injuries he sustained at the hands of the first three defendants. The sum of their evidence is summarized above in the background facts. 

Considerations

Breach of Constitutional/Humans Rights

14.	The Plaintiff claims three distinct instances of breaches of human rights.  These are:

1)	The Plaintiff was physically assaulted at the Police Station car park. He was punched, kicked, booted, and hit with a spanner without lawful excuse.
2)	He was physically pulled over the top of the reception counter at the Police Station without lawful excuse.
3)	A police uniform (shirt) was thrown over his head and tightly tied around his neck. He was then dragged out of the Police Station to the car park.

15.	Mr. Ilaisa urged the Court to award a global sum for breaches of the Plaintiff’s Constitutional rights, the approach taken by Cannings J in Kolokol v The State (2009) N3571 and Meta v The State (2012) N4735.  In these cases, the plaintiff was awarded K5000.00 for each of the distinct human right breaches proven against the State. Mr. Ilaisa also urged the Court to consider the rise in inflation which has resulted in the decreasing value of the Kina.  (Westcot v Motor Vehicles Insurance Ltd (2008) N3565) Counsel submitted therefore that a sum of K10,000.00 ought to be awarded for the three distinct breaches of human rights in this case.

16.	I see no reason why I should not take the same approach taken by Cannings J in Kolokol and Meta (supra) by awarding a global sum for each distinct human right or Constitutional breaches. However, what sum should I award, should it be K5000.00 as was awarded in those cases or K10,000.00 as urged upon me by Mr. Ilaisa in consideration of the weakening Kina due to inflation?

17.	I am of the considered view that a global sum of K10,000.00 for each instance of breach would be most appropriate.  I therefore award K30,000.00 for breach of the Plaintiff’s human rights as accorded him by Section 36 (1) of the Constitution (Freedom from inhuman treatment).

Exemplary Damage
18.	Mr. Ilaisa submitted that a sum of K10,000.00 would be an appropriate sum for exemplary damages and this should be borne by the Fifth Defendant, the State. And again, counsel relies on Kolokol (supra.) where Cannings J awarded a similar sum. That case involved a police shooting. In the instant case the Plaintiff was seriously assaulted by policemen in a publicly humiliating and degrading manner which deprived him of his dignity. 

19.	Counsel relied on what the majority in the Supreme Court case of Abel Tomba v The State (1997) SC518 said. The majority (Los and Salika JJ) expressed the view that where the breach by police officers is a technical one, exemplary damages may be paid by the State. However, where the breach is a significant and unwarranted departure from the proper exercise of police powers, e.g. where a police operation is unauthorized and individual officers are not named, the exemplary damages are not payable by the State. A plaintiff is expected to seek such damages from the individual officers who breached the law.

20.	Counsel further relied on Section 12 (1) of the Claims by And Against the State Act 1996 (CBASA) which relevantly provides:
12.	  JUDGEMENTS AGAINST THE STATE.
(1)	No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.
(2)	...
(3)	...

21.	Mr. Ilaisa submitted that the current case did not involve an unauthorized operation hence the matter ought to fall under the first category of the test espoused in Abel Tomba by the Supreme Court. However, considering the stipulation against award of exemplary damages and the exemption enjoined by Section 12 (2) of the CBASA, counsel submitted that the breach was severe and continuous and as such warrants the award of exemplary damages against the State.

22.	Do the facts in the instant case warrant the award of exemplary damages against the State? Was the human right breach of the First, Second, and Third Defendants a technical one or did it involve a significant and unwarranted departure from the proper exercise of their powers as policemen? What specific police powers were they exercising when they committed these human rights breaches?

23.	The First, Second and Third Defendants were police officers enforcing traffic regulations on the day in question. The evidence showed that the Plaintiff simply accompanied his father to the Police Station who was called in for some traffic infringement which the Plaintiff did not witness nor had any idea about. He was asked by the First Defendant what speed his father was speeding and he honestly answered that he did not know as he was not present when his father committed the alleged infringement. Without warning the First Defendant lashed out at him punching him on his chest and face. The Plaintiff ran into the Station where his father was only to be manhandled by the Second and Third Defendants who grabbed and dragged him over the counter where they were standing. The Third Defendant then tightly wrapped a police uniform over the Plaintiff’s head and dragged him outside to the parking lot where they continued to punch and kick him.  If that was not enough, the Third Defendant picked a wheel spanner and hit the Plaintiff with it five times. They only stopped when the Plaintiff’s shouted at them to stop.

24.	Clearly the Plaintiff was totally innocent of any wrongdoing. He was not suspected of any offence including traffic infringement.   He was simply being honest when asked what speed his father was doing.  For that he got a severe beating by the first three defendants. Was the beating he got authorized by law, or in other words were the police exercising their statutory powers to police traffic rules? Clearly not! They vented their anger and frustration on the Plaintiff who was completely innocent of any wrongdoing, I cannot see how their actions can fall within their statutory powers to enforce traffic regulations. Their breaching of the Plaintiff’s human rights was not a technical one. But it appears to be a significant and unwarranted departure from the proper exercise of their policing powers. This is exactly the kind of situation which the Supreme Court said in Abel Tomba should not warrant the award of exemplary damages against the State.  Should this disqualify an award against the State?

25.	It is to be noted, however, that the majority in Abel Tomba did not specifically stipulate or hold that exemplary damages should be awarded at all. Rather it provided two considerations under which exemplary damages may or may not be awarded as seen above. 

26.	The dissenting opinion by Amet CJ in Abel Tomba is worthy of note. His Honour said at pp. 7 and 8:

"...The justification that exemplary damages against the State cannot be considered because of lack of evidence as to whether the actions of the police officers was (sic) officially suctioned by State policy or directives and that individual police officers were not named in the Writ for exemplary damages to be awarded against them individually is to import into the consideration of the award of exemplary damages criteria which is not necessary.

The award of exemplary damages is therefore not dependant upon whether the action was officially sanctioned by the State policy or directives or whether individual employee officers were named in the writ in order that the award can be made against them personally. Rather, once liability for the breach or the tortuous conduct has been vicariously imputed to the employer, then ordinary and exemplary damages can be awarded against the employer. It is also specifically enabled by the Search Act.

27.	Pertinently, the award of exemplary damages must ultimately, in my view, be considered in light of the stipulation in Section 12 (1) of CBASA which is that exemplary damages may not be awarded against the State unless it appears to the Court that the breach was so severe or continuous? 

28.	There is no doubt that the breach here was severe, but not continuous. The provision that does not provide that the breach be both severe and continuous. Rather the terms are used in the alternative and not conjunctively. Therefore, exemplary damages may be awarded if the court is of the opinion that the breach was severe or continuous notwithstanding the principle in Abel Tombe, in appropriate cases.
 
29.	That is what his Honour Gavara-Nanu J did in Kakipa v Nikilli (2002) N5689. There the Plaintiff was unlawfully imprisoned for several months by an order of the Village Court. His Honour found that there were serious and blatant breaches of the plaintiff’s Constitutional rights which warranted the award of exemplary damages against the State. His Honour said:

“... 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.”
 
30.	The courts are cognizant of the fact that there are many reasons which contribute to lack of discipline within the Constabulary resulting sometimes in abject and blatant breaches of citizen’s Constitutional rights. Principal among these is the breakdown in control and command, and lack of training and education. 

31.	For instance, in  Namba v Naru (2011) N4396 the plaintiff was a passenger in a truck which was pulled over by a police patrol.  The officers then proceeded to assault its passengers. In fear the plaintiff ran off and was shot twice in the leg.  His leg was amputated below the knee as a result. 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 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.”
32.	His Honor Batari J expressed a similar view in Wiwa v State (2012) N5271. This was a dependency claim by the parents of a young man who died from loss of blood after he was shot in the leg while in police custody. In awarding exemplary damages against the State his Honour said:
“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.”
33.	 It can be seen therefore that the court will award exemplary damages against the State notwithstanding the majority opinion in Abel Tombe. This I think is the proper approach to take given the discretion stipulated by s 12(1) of CBASA.  When police officers blatantly trample upon the Constitution rights of citizens because the State cannot control its officers and instill discipline in them to respect citizens and the rule of law they are sworn to protect, through the Commissioner and his senior officers, I cannot see why the State should be absolved from paying exemplary damages. Certainly, a finding of vicarious liability must necessarily follow through to an award of exemplary damages as well.

34.	Given the seriousness of the breach of the Plaintiff’s Constitutional rights, I am compelled to exercise my discretion under s 12(1) of CBASA to award exemplary damages against the State in the sum of K10,000.00. 
Special Damages
35.	 The law on claims for Special Damages is clear. To be entitled to this head of damages the Plaintiff must sufficiently identify the facts in his Statement of Claim as well as strictly prove the facts pleaded by evidence. (Mel v Pakalia (supra) Conversely no evidence should be admitted to support facts not pleaded in a statement of claim. (MVIT v Tabanto (supra.); MVIT v Pupune (supra.)

36.	The Plaintiff claimed the following under this head:

(i)	Medical Report – K5.00
(ii)	Travel Expense (PMV) from Huhuna to Alotau and back
Attendance to Lawyer’s office 2014 – K360.00
Attendance to Lawyer’s office 2015 – K260.00
				       	Total = K620.00

37.	Has the Plaintiff proved these out-of-pocket expenses? The only expense that the Plaintiff has provided strict proof of is the medical report. Annexure “H” to his Affidavit in Support sworn on 8 July 2016 and filed on 11 July 2016 is a receipt of payment of K5.00 for Medical Report dated 11/03/16 (Receipt CZ No. 0426626) by the Milne Bay Health Authority. 

38.	The Plaintiff has failed to provide any proof at all in respect of the other expenses he claimed to have incurred – PMV fares to Alotau from Huhuna to attend to his Lawyers. He obviously would have paid PMV fares, but it is strictly required of him to prove this by providing receipts.

39.	The pleadings for this head are unfortunately deficient – they do not plead any particulars such as the fare for this route and they days he attended his Lawyers in town.  This item has therefore not been proved conclusively. I can only award K5.00 for the medical report.
Total Award
40.	I therefore award the following damages –
(1)	Breach of Constitutional/Human Rights – K30,000.00
(2)	Exemplary damages                               – K10,000.00
(3)	Special Damages                                   – K5.00
Total						= K40,005.00	

Interest

41.	The Plaintiff is entitled to interest at the rate of 2% pursuant to Judicial Proceedings (Interest on Debts and Damages Act Ch. 52 (as amended). Mr. Ilaisa submitted that there is nothing that takes this case out of the ordinary. Counsel also submitted that interest should be calculated from the date of accrual of the action to the date of judgment on assessment of damages. I see no reason to rule otherwise and therefore will award interest as at 2% from the date of accrual of the action, which is 8 May 2014 to the date of judgment on assessment of damages which is 21 September 2024.

42.	In calculating the amount interest, I adopt the formula formulated by Cannings J in cases like Koloko and Meta (supra) which is:

Damages assessed x Interest rate x Number of years = Amount of Interest
K40,005.00 x 2% x 10.04 = K8,033.00
43.	The interest to be paid shall therefore be K8033.00. The total award shall therefore be K48038.00 which shall be paid by the Fifth Defendant.

Costs

44.	 Cost shall follow the event on a party/party basis.

Judgment

45.	I direct judgment to be entered for the Plaintiff in the following terms:

1.	The Fifth Defendant (State) shall pay to the Plaintiff the sum of K40005.00 for damages.
2.	The Fifth Defendant shall pay interest in the sum of K8033.00.
3.	 The Fifth Defendant shall pay the Plaintiff’s costs on a party/party basis which shall be taxed if not agreed upon.

Ordered accordingly.
________________________________________________________________
The Public Solicitor: Lawyers for the Plaintiff		
The Solicitor General: Lawyers for the Defendants