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Independent State of Papua New Guinea v Kei [2024] PGSC 19; SC2550 (5 April 2024)

SC2550

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 29 OF 2023

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

CONSTABLE ARIMU HARO
Second Appellant

AND
THOMAS KEI
Respondent

Waigani: Batari, Mogish and Berrigan JJ
2024: 28^th March & 5^th April

DAMAGES – VICARIOUS LIABILITY – Whether award for past economic loss supported by the pleadings – Whether award for medical and related costs reasonable - Whether State should be liable for exemplary damages.

The respondent, a 24-year old man, lost control of the vehicle he was driving whilst under the influence of alcohol late at night. Upon arrival at the scene the second appellant and fellow officers forced the respondent and his three passengers out of the vehicle. The second appellant then assaulted the respondent and took a mobile phone and K265 in cash from him. The respondent refused to get into the police vehicle as directed, in response to which he was punched and kicked by police and then deliberately shot by the second appellant with a police issue assault rifle at close range to both knees. He suffered permanent disability of 60% to his right leg.

The appellants challenged the damages awarded for past economic loss, medical and related expenses, and exemplary damages.

Held

(1) The appellants failed to demonstrate error on the part of the trial judge in the award of past economic loss which was supported by the pleading and the unchallenged evidence at trial.

(2) Considering the nature and extent of the injury and the need for ongoing treatment the appellants failed to demonstrate error on the part of the trial judge in the award of damages for medical and related expenses.

(3) 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: Abel Tomba v The State [1997] SC 518; Koimo v The State [1995] PNGLR 535; Kakipa v Nikilli (2002) N5689; Wiwa v State (2012) N5271; Namba v Naru (2011) N4396; s 12(1) Claims By and Against the State Act, 1996, considered.

(4) Considering the severe and egregious breach of constitutional rights by an agent of the State the first appellant failed to demonstrate error in the award of exemplary damages against it in the exercise of discretion.

Appeal dismissed.

Cases Cited
Papua New Guinea Banking Corporation v Tole (2002) SC694
Kumul Petroleum Holdings Ltd v Alina (2022) SC2253
Frontier Holdings Ltd v James Hariva Lohoro & Ors (2022) SC2334
Ume More v University of PNG (1985) SC310
Yakasa v Piso (2014) SC1330
Kuman v Digicel (PNG) Ltd (2013) SC1232
MVIT v John Etape [1994] PNGLR 596
Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452
Covec (PNG) Ltd v Kama (2020) SC1912
Herman Sahale v Francis Karogo & Ors (2019) SC2129
Latham v Henry [1997] PNGLR 435
Peter Kuriti v the State [1994] PNGLR 262
Abel Tomba v The State [1997] SC518
Andale More and Ors v Henry Tokam & The State (1997) N1645
Peter Kuriti v The State [1994] PNGLR 263
Wama Kints v The State (2001) N2113
Koimo v The State [1995] PNGLR 535
Kakipa v Nikilli (2002) N5689
Wiwa v State (2012) N5271
Namba v Naru (2011) N4396
Pade v Nangas (2018) N7073
Amaiu v Yalbees (2020) SC2046

References Cited
Section 12(1) of the Claims By and Against the State Act, 1996

Counsel:
P. Ohuma, for the Appellants
D. Kipa, for the Respondent

5^th April 2024

1. BY THE COURT: The State was found vicariously liable for negligence and breach of human rights by the second appellant, a police officer, following trial.
   
2. The respondent, a 24 year old man, lost control of the vehicle he was driving whilst under the influence of alcohol late at night. Upon arrival at the scene the second appellant and fellow officers forced the respondent and his three passengers out of the vehicle. The second appellant then assaulted the respondent and took a mobile phone and K265 in cash from him. The respondent refused to get into the police vehicle as directed, in response to which he was punched and kicked by police and then deliberately shot by the second appellant with a police issued assault rifle at close range. The respondent suffered injuries to both knees and was subsequently taken to hospital. At the time of the hearing on damages he was assessed as having suffered the following permanent injuries: ineffective use of the right lower limb and weakness of 60%; cosmetic disfiguration of his right knee of 10%; and osteoarthritis of the right knee with reduction in full flexion and extension movement of 20%.
   
3. The respondent was awarded total damages of K398,330 comprising: K131,770 for past economic loss; K196,560 for future economic loss; K5000 for medical expenses and loss of phone; K30,000 general damages; K20,000 exemplary damages; and K15,000 compensation for breach of constitutional rights.
   
4. There are multiple grounds of appeal. In short, the appellants contend that the learned trial judge erred in the exercise of discretion with respect to the damages awarded for: a) past economic loss; b) medical and phone expenses; and c) exemplary damages. They take no issue with the other amounts awarded.
   

Past Economic Loss

5. The appellants contend that the trial judge erred in awarding a sum of K131,770 for past economic loss when a sum of only K1,811.86 was particularised in the pleadings. It relies on the principles outlined in Papua New Guinea Banking Corporation v Tole (2002) SC694.
   
6. As the Supreme Court has since made clear, however, the emphasis now is on ensuring procedural fairness: Kumul Petroleum Holdings Ltd v Alina (2022) SC2253 at [16]; Frontier Holdings Ltd v James Hariva Lohoro & Ors (2022) SC2334 at [33] to [35]. As such, whilst the Court must usually confine itself to the issues raised in the pleadings (Ume More v University of PNG (1985) SC310) undue rigidity in the application of procedural requirements should not be allowed to compromise the substantive goal of the Court, which is “to do justice between parties according to law”: Yakasa v Piso (2014) SC1330. What is essential is that a party is put on notice as to the case it has to meet and that the issues for decision are defined: Kuman v Digicel (PNG) Ltd (2013) SC1232 at [14]; Amaiu v Yalbees (2020) SC2046 at [66] to [70] and [89] et seq.
   
7. Where it is clear from the conduct of the parties that they have deliberately chosen some issue different from that disclosed in the pleading for the determination of their rights and liabilities, procedural fairness will have been achieved: Yakasa v Piso (supra) at [66]. Where evidence is led without objection a Court is entitled to make findings on the basis of such evidence provided it is within the general ambit of the plaintiff’s claim: MVIT v John Etape [1994] PNGLR 596 applying Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452. See also Covec (PNG) Ltd v Kama (2020) SC1912 and Herman Sahale v Francis Karogo & Ors (2019) SC2129 at [17] to [22].
   
8. The issues for determination in this case were clearly before the National Court. These included a claim for past and future economic loss – namely income - suffered by the respondent as a result of the second appellant’s conduct.
   
9. The difference between the amount pleaded and the amount awarded for past economic loss is essentially a result of terminology. The pleading treated “past economic loss” as those monies to which the respondent was already entitled at the time of his termination, namely payment in lieu of notice and the amount of sick leave credits owing to him at that date. The loss of income following his termination was particularised under the claim for “future economic loss”. It included a claim for the loss suffered in the three years immediately following termination and a further claim assuming a working life of 30 years thereafter.
   
10. The claims for payment in lieu and sick leave were abandoned by the respondent as they had since been met by his former employer.
    
11. The trial judge awarded past economic loss from the date of the injury to the date of hearing on assessment of damages. No authorities were put before us as to the period for calculating past economic loss. In general terms we think it reasonable to calculate it from the date the loss is first incurred to the date of judgement of damages. Ultimately, it is not necessary for us to determine that matter and nothing turns on it in this case.
    
12. The appellants have failed to demonstrate any error on the part of the trial judge. The claim for past economic loss from the date of termination was squarely before the Court. The appellants were not taken by surprise either as to the date upon which the respondent was terminated or the rate at which he was paid prior to termination. The pleading expressly stated that the respondent earnt K9 an hour, eight hours a day, for a standard 84-hour fortnight, albeit that it did so under a different heading. Evidence, including payslips, was led in support of the claim, without any objection or cross-examination by the appellants. The appellants have failed to demonstrate that there was any duplication in the amounts awarded for past and future economic loss. The appellants have failed to demonstrate any prejudice or procedural unfairness. Indeed, the appellants do not dispute that the trial judge’s finding as to past economic loss is supported by the evidence. Their only complaint is that it was described in different terms in the pleading. For obvious reasons that is beside the point.
    
13. The ground is without merit and is dismissed.
    

Medical Needs and Loss of Property

14. Unchallenged evidence established the cost of the respondent’s phone and cash at K615, together with medical costs already incurred of K1076. The evidence further established that the respondent would require at least one further surgery.
    
15. Having regard to the costs established to date, the nature and extent of the injury, the ongoing need for some form of medical treatment, and the costs necessarily associated with that, the appellants have failed to demonstrate any error on the part of the trial judge in awarding K5000 for medical needs and related costs.
    
16. The ground is also dismissed.
    

Exemplary Damages

17. The State contends that the learned trial judge erred in awarding exemplary damages against it because the law requires that exemplary damages lie only with the individual police officer concerned.
    
18. There is no such rule of law.
    
19. In general terms, the award of exemplary damages is a matter of discretion. Exemplary damages are punitive in nature. Their purpose is to punish the defendant and vindicate the distinction between a wilful and an innocent act: Latham v Henry [1997] PNGLR 435. Their purpose is not to unjustly enrich a plaintiff but to symbolise public indignation of the defendant’s conduct: Peter Kuriti v the State [1994] PNGLR 262. Exemplary damages may be awarded to mark the Court’s disapproval of serious violations of a person’s constitutional rights and to deter similar conduct by the defendant or others in the future.
    
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 gun shot 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.
    
29. Returning to the present case, the trial judge took into account all relevant considerations, including that the State was already bearing loss for one of its irresponsible agents. We find no error in his ruling.
    
30. This case concerned a deliberate and severe breach of the respondent’s constitutional rights. The respondent was robbed, assaulted, shot at twice, and suffered a life changing injury which deprived him of the opportunity for future employment. For obvious reasons the fact that the respondent was uncooperative and resisted arrest did not justify the second appellant’s conduct.
    
31. A cursory review of authorities reveals numerous other cases in which serious injury, often to the leg, has been caused by the deliberate use of firearms by police officers whilst on duty: Pade v Nangas (2018) N7073; Jessie Namba v The State (2011) N4396; Joe Kape Meta v The State (2012) N4745; Vincent Kerry v The State (2012) N4658; and Gerard Pain v The State (2014) N5604, amongst others.
    
32. It is the State that arms its police officers and the State which must ensure that its officers are properly trained and disciplined. Police brutality is prevalent and must not be tolerated. The Courts have repeatedly denounced it in both civil and criminal cases. It denigrates all those who serve with honour and distinction and undermines the public trust in the police force which is so essential to maintaining the rule of law.
    
33. This was a severe and egregious breach of constitutional rights by an agent of the State. It warranted exemplary damages both to mark the Court’s condemnation of the conduct and to deter similar conduct in the future.
    
34. The ground is dismissed.
    
35. We make the following orders.
    

ORDER

1. The appeal is dismissed.
2. The orders of the National Court on 16 February 2023 are affirmed.
3. The appellants shall pay the respondent’s costs of the appeal on a party-party basis to be taxed if not agreed.

___________________________________________________________
Solicitor-General: Lawyers for the Appellant
Wang Dee Lawyers: Lawyers for the Respondent