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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 967 OF 2012 CC1
BETWEEN:
SYLVESTER HARRY KOMBA
Plaintiff
AND:
KAPU SAP
Second Plaintiff
AND:
MAJOR LARRY LAURIE, Operation Commander, Security Force, National General Elections, Papua New Guinea General Elections
First Defendant
AND:
TOAMI KULUNGA, Commissioner of Papua New Guinea Constabulary and Commander of Security Forces, Papua New Guinea General Elections
2012
Second Defendant
AND:
FRANCIS AGWI, Brigadier General, Commander of Papua New Guinea Defence Force
Third Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
WAIGANI: BRE J
9 MAY 2025; 16 FEBRUARY 2026
DAMAGES – tort of negligence - restore plaintiff as nearly as possible to position before injury – plaintiff a candidate in the 2012 SHP national elections - damages sought must arise from pleadings - damages should be foreseeable – damages must be proved with corroborative evidence – damages awarded accordingly
Writ of Summons
Trial on assessment of damages where the plaintiff sought to prove damages suffered because of negligent conduct of the PNG Defence Force personnel.
Cases cited
Enei v Rimbunan Hijau Ltd [2011] N4402
Golobadana No. 35 Ltd v Bank of South Pacific Ltd [2013] N5340
Gunambo v Upaiga [2010] N3859
Kalinoe v Paul Paraka [2014] SC1366
Kapipi v Andu [2015] N6125
Komba v Laurie [2021] N9334
Kuli v Kaldakasa [2020] N8360
Lance Kolokol v Constable George Amburuapi & Ors [2009] N3571
Limitopa v The State [1988-89] PNGLR 364
Mineral Resources Development Company Limited v Dan Salmon Kakaraya [2024] SC2549
Mel v Pakalia [2005] SC790
Motor Vehicles Insurance Limited v Maki Kol [2007] SC902
National Capital District v Central Provincial Government [2015] SC1429
Counsel
Mr Sylvester H Kombo, first plaintiff appearing in person
Ms P Ohuma, for the first and second defendants
JUDGEMENT
1. BRE J: This matter is for assessment of damages after the defendants were held liable for the tort of negligence which occurred on 01 July 2012. The case has taken four years to reach assessment.
2. There are two plaintiffs, Mr. Komba and Mr. Sap. Mr. Sap did not appear nor formal written authority to act presented by Mr. Komba who seemed to represent Mr. Sap. I therefore consider only the damages award for Mr. Komba who appeared in person and presented a comprehensive submission. His evidence too is that he compensated Mr. Sap for his injuries through customary obligation for which he also seeks reimbursement.
3. The background facts of the case and the reasons for the decision on liability are adequately covered in the decision of Her honour Tamade AJ in Komba v Laurie [2021] N9334. I will not repeat them and proceed to assess damages.
4. There are several established principles of law that I am guided by in assessing damages. The relevant principles are:
See: Motor Vehicles Insurance Limited v Maki Kol [2007] SC902, Papua New Guinea Banking Corporation Ltd v Jeff Tole [2002] SC694, Mel v Pakalia [2005] SC790, Limitopa v The State [1988-89] PNGLR 364, Kalinoe v Paul Paraka [2014] SC1366, National Capital District v Central Provincial Government [2015] SC1429 and Kela v Ambo [2024] N11021.
5. The State defendants were held vicariously liable to the plaintiffs for the negligent actions of its disciplined forces comprised of the military who were deployed during the 2012 national elections to the Southern Highlands province to ensure the elections were conducted peacefully.
6. Mr. Komba contested the elections as a candidate for the regional seat. On 1 July 2012, he and Mr Sap were physically assaulted
by members of the PNGDF who were on duty at that time.
As a result of the physical assault, they suffered soft tissue injuries to their head, face and body from being kicked, punched and
beaten with a timber.
The assault occurred in daylight in full view of a large crowd who were present for the counting.
7. I accept Mr. Komba's evidence that he sustained the following injuries to his body:
a) 2cm depth x 4cm length deep lacerations to the head.
b) Loss of blood
c) Swollen right cheek, tender, difficulty opening mouth
d) Back bruises/abrasions from being struck by timber and from been repeatedly kicked
e) These injuries were tender on palpation.
8. The contemporaneous medical report of 2 August 2012 from Mendi General Hospital indicated soft tissue injuries as a result of the physical assault and stated there was no evidence of fractures to the head and nose. There was difficulty opening the mouth which affected the use of the cheek. There were bruises and abrasions to the back which were tender on palpitation.
9. Mr. Komba submitted that he experienced substantial financial losses and hardship because of the physical assault and the length of time it had taken him to pursue his claim against the State to seek justice. That it took a total of 13 years. He attributes the financial losses he suffered to his business, income earning capacity, loss of his family and loss of his reputation to this physical assault. He states that he was a third-year university student when he contested the elections as a young and upcoming leader and the negligent actions of the State's officials, the PNGDF, negatively affected his life and aspirations.
10. Mr. Komba represented himself and sought a total damages award of K3,045,980.50 which he submitted was adequate to compensate
him for the totality of his losses.
Of this global sum, he seeks three aspects of general damages award totaling K430,000.00, breach of constitutional rights at K10,000.00,
special damages at K2,505,980.50 and exemplary damages at K100,000.00 with interests and costs.
11. Counsel for the State submitted that the total damages sought are excessive and do not warrant against the injury caused, and some of the larger amounts sought were not supported by the pleadings, evidence and the CBASA. The State counsel submitted that Mr. Komba should instead be awarded a nominal award of K12,100.00.
12. It is trite law that damages sought must be pleaded. The amended statement of claim[1] indicates Mr. Komba pleaded the following reliefs for the negligent actions of the PNGDF soldiers committed on 1 July 2012:
“1) Damages for the physical injuries sustained to his person,
2) Breach of constitutional rights
3) Loss of reputation
4) Exemplary damages
5) Special damages, and
6) Costs.”
13. The following damages sought by Mr. Komba in submissions are not pleaded, have no legal foundation to warrant consideration and are accordingly refused:
14. As such an amount of K 2,353,000.00 is refused and subtracted from the total amount claimed. This leaves a balance of K 692,980.5 to consider from Mr. Komba's submissions and evidence.
15. Mr. Komba’s pleadings outlines the physical injuries he sustained, the medical treatment he received and the factual allegations of negligence by the defendants. The financial and economic losses he claims are not properly pleaded either.
16. Heads of damages sought must be specially pleaded to have a chance of being judiciously considered and appropriately supported by corroborative evidence. See: Papua New Guinea Banking Corporation Ltd v Jeff Tole [2002] SC694, Kalinoe v Paul Paraka [2014] SC1366, and National Capital District v Central Provincial Government [2015] SC1429.
General damages
17. I accept the State's submission that the award of general damages includes pain, suffering, humiliation, distress and inconvenience
suffered at the time of the assault. See Kuli v Kaldakasa [2020] N8360 and Gunambo v Upaiga [2010] N3859.
Mr. Komba compartmentalised his claim for general damages of K430,000.00 into:
18. Ms. Ohuma submitted that the claim for physical assault and injury is not corroborated by medical evidence and did not warrant the higher award sought as such high amounts are usually awarded for permanent injuries or aggravated circumstances such as wounds or disability from weapons, such as firearm discharges.
19. Mr. Komba made submissions relying on past caselaw of similar soft tissue injuries to seek an award of K30,000.00 only for the physical injuries sustained.
20. In deciding how much to award, I consider that the splitting of injury and suffering in the general damages category as submitted by Mr. Komba provides clarity with assessing quantum. I accept it.
21. However, when deciding reasonable and adequate compensation that will serve the purpose of “as nearly as money can do” for the purpose restoring the plaintiff to his original position, the quantum sought should be commensurate with the injuries sustained and not remote from the tort suffered.
22. The principles guiding the award of damages are relevant and applicable to decide whether the damages awards are reasonable, adequate and serve the purpose of restoring.
23. For general damages, Mr. Komba sought for:
1) physical assault and injury, an amount of K30,000.00,
2) loss of reputation, pain, anxiety and suffering an amount of K100,000.00 and
3) future medical expenses an amount of K300,000.00.
24. General damages are generic in nature and intended to capture the hurt, loss, pain, injury and suffering experienced as a result of the wrongful and tortious conduct of the defendants. It is a broad head of damages to capture all types of general damages sought by Mr. Komba. However, those losses and sufferings he incurred must be foreseeable and directly related to the physical assault and negligent conduct and should not be remote or distant from the actual injury inflicted and suffered.
25. Mr. Komba attributes his current medical diagnosis of hypertension and heart palpitations to the toll of the litigation on him. The case has taken 13 years to reach this stage. Four of those years were pending trial on assessment of damages. Litigation for the tort of negligence should not take this long to reach finality. The phase of the litigation depends on the plaintiff. The plaintiffs have a legal responsibility to expedite their cases to finality. The court rules direct that a case be set down for trial within six weeks after pleadings close. Pleadings closed around October 2016, after the State filed its Defence on 30 August 2016.
26. The stress of litigation is not unique to the plaintiffs but to all litigants as a natural consequence of their case. Messrs Komba and Sap bear the responsibility of progressing their claim to trial, not the defendants.
27. The medical expenses claimed is for a diagnosis that occurred recently in 2024 which is some 12 years after the physical assault
on 1 July 2012.
The medical diagnosis did not arise as a complication to the physical soft tissue injuries Mr. Komba sustained to his face, head and
body. He recovered from these injuries within weeks. There is no ongoing medical complication nor independent medical evidence of
such complications contemporaneously from the time of the soft tissue injuries in 2012 or immediately after, in 2013.
The claim for future medical expenses are not pleaded either and is without legal and evidential basis. It is too remote and far-fetched
to attribute the 2024 diagnosis to the physical assault by the State's military personnel on 1 July 2012. I refuse this claim for
medical expenses.
28. On the claim for pain and suffering attributed to the physical assault, I accept the amount submitted of K30,000.00 is adequate for the soft tissue injuries.
29. On the claim for loss of reputation, I accept it falls within the category of general damages for hurt pride and humiliation suffered
as a political candidate of the 2012 general elections under the general damages award.
Damages for loss of reputation of the amount sought of K100,000.00 usually arises from defamation pleadings after the defamation allegation
is proved. I consider the case of Mineral Resources Development Company Limited v Dan Salmon Kakaraya [2024] SC2549 relied on by Mr. Komba; an exception, not of precedential value to this case to justify a loss of reputation award. The facts in
that case are distinguishable to this case. The purported harm to reputation arose from a public physical assault where the detail
personal or professional particulars of the plaintiffs are not expected to be known by the assailant defendants.
30. However, I accept the circumstances of the assault resulted in hurt pride and humiliation and to an extent affected Mr. Komba’s reputation as a political candidate for the regional seat. I also consider the public nature of the location of the assault. Still, the evidence indicates, the elections had ended, and the incident occurred during counting of the votes. Therefore, the impact of the physical assault or negligent conduct of the defendants did not cause severe harm to his future political career. In fact, Mr. Komba placed fifth after the counting concluded which dissipates any future or long-term harm that Mr. Komba may perceive.
31. I therefore consider an amount of K20,000.00 is reasonable compensation for the public hurt and humiliation caused by the State's personnel. The PNGDF failed to exercise restraint and sound judgement before physically assaulting a registered political candidate for the Southern Highlands regional seat and on that basis, I consider K20,000.00 a just award.
32. In conclusion for general damages; I award a total amount of K50,000.00 to Mr. Komba.
Breach of Constitutional Rights
33. I adopt the approach of a separate award of damages for constitutional breach by the occasions of the breaches and the types of constitutional rights breached. See Lance Kolokol v Constable George Amburuapi & Ors [2009] N3571.
34. Here the pleading alleges only breach of section 41 of the Constitution for breach of the right to freedom from harsh and oppressive actions.
35. Ms. Ohuma submitted that the claim should be refused as the enforcement provisions in sections 57 and 58 of the Constitution were not pleaded.
36. However, the evidence is clear; State forces negligently applied the law in carrying out their duties by physically assaulting the plaintiffs, who are protected by the constitutional rights to protection of the law and freedom from inhuman treatment.
37. The Court can on its own initiative pursuant to section 57 of the Constitution inquire into and enforce constitutional rights that are breached. I therefore do not regard the lack of pleading sections 57 and 58 of the Constitution as a barrier to enforcing constitutional breaches.
38. Further, although only the right in section 41 of the Constitution is pleaded, subsection (3) of section 41, does not exclude consideration of other breaches and in that regard, I consider the right to protection of the law guaranteed in section 37 and freedom from inhuman treatment guaranteed under section 36 of the Constitution, relevant and applicable.
For these reasons, I find that three of Mr. Komba's constitutional rights were breached.
39. Constitutional rights breaches of this type do not attract a higher rate of K10,000.00 or K15,000.00 as submitted. I accept the State's submission instead. The usual amounts awarded from below K5000.00 are applicable.
40. Given Mr. Komba's status as a political candidate in the national elections for the regional seat, I award K6000.00 being K2000.00 for each of the three constitutional rights breaches.
Special Damages
41. Special damages must be proved with receipts of the payments sought or by reasonable justification with corroborated evidence.
Mr Komba submitted that he should be awarded special damages totaling K2,496,980.50 for:
1) Loss of business income K1.5million
2) Reimbursement of customary obligation compensation payment K97,000.00
3) Out of pocket expenses K143,980.50
4) Economic loss K756,000.00
I refused earlier all claims with no foundation in the pleading but will consider claim 3 for out-of-pocket expenses.
42. Additionally, the negligent conduct was not done to Mr Komba's company or business interests so the financial losses are disregarded.
43. It is futile to consider the losses incurred in fulfilling a customary obligation to the co-plaintiff Mr Sap as an out-of-pocket expense. That would be stretching this damages category beyond its intended application for miscellaneous or sundry payments such as transport fees etc,. This would be better pleaded as a separate claim. Regardless, it has not been pleaded and does not require consideration.
44. I mention in passing that the submissions for some aspects of Mr. Komba’s financial loss for funding the litigation are relevant for consideration as costs rather than a separate damages head.
45. The claim for out-of-pocket expenses totaling K143,980.50 is not supported by documentary evidence. The evidence supplied includes payments for legal costs and other expenses which do not compromise appropriate expenses to be awarded under this category. Out of pocket expenses are paid from one’s own pocket or cash on hand without sourcing funds from a third person or account and are often reimbursable by the third person.
46. For damages claims, out of pocket expenses ought to be for immediate personal costs associated with the injury, harm or loss such as transport payments to seek medical attention and paying the costs of the hospital etc,. The submission for K143,980.50 is a substantial claim not commensurate with ordinary understanding of an out-of-pocket expense. If such were incurred, it should be supported by a bank statement showing the expenses paid and not be remote from the injury. See Enei v Rimbunan Hijau Ltd [2011] N4402, Golobadana No. 35 Ltd v Bank of South Pacific Ltd [2013] N5340 and Kapipi v Andu [2015] N6125.
47. Having stated this, I accept that out-of pocket expenses were incurred to be transported to seek medical treatment and such other sundry costs. Receipts of the medical report fee of K50.00 and air travel fares of K1200.00 have been adduced into evidence. I consider other minor sundry costs that may been incurred and award an amount of K1500.00 for out of pocket expenses.
Exemplary Damages
48. I accept the State's submission that section 12(3) CBASA prevents the award of exemplary damages against the State. There was no finding of the plaintiffs constitutional rights been severely or continuously breached over time by the State's employees. The claim for exemplary damages is refused.
Interest
49. Interest is a discretionary matter. This case has taken more than a decade to reach finality. The plaintiff has the onus to prosecute his claim to finality. It took nearly 13 years to do that. The duration of the case also has an adverse impact on the defendants. The interests of justice requires an expedited conclusion of the proceeding.
50. However, interest has not been pleaded nor claimed as a relief. Interest is clearly absent in the particulars of the claim pleaded at paragraph 33 of the amended statement of claim.
51. There is no foundation in the pleadings to exercise my discretion to award interest and on that basis, pre or post judgement interest is not awarded.
Costs
52. Costs follow the event and such reasonable costs as may be agreed or taxed are awarded to the plaintiff to be paid by the State on a party/party basis. Given the length of time this case has taken, I exercise my discretion to limit costs awarded to six years only. I note the claim was initially filed at the Mendi National Court which has not sat until 2024 and factor that into the six year period.
ORDERS
53. I hereby award damages to Mr. Komba as follows:
Judgement and orders accordingly;.
__________________________________________________________________
Lawyer for the defendants: Solicitor General
[1] Filed 21 October 2015, Court document number 19.
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