N1270

Papua New Guinea
[In the National Court of Justice]

WS 11 OF 1993

ALPHONSE KOPI

V

THE STATE

Mount Hagen: Woods J
18, 19, 20, July 9 September 1994

Liability of State for action of its servants - CIS assaulted a prisoner who was escaping - permanent injury - achilles tendon cut - exemplary damages.

Cases cited:
Kofewei v Siviri & Os & The State [1983] PNGLR 449.

D. L. O'Connor for the Plaintiff.
L. Manoa for the Defendant.

9 September1994

WOODS, J: The Plaintiff is claiming damages for unlawful assault by servants of the State. At the time of the alleged incident the Plaintiff was a prisoner at Baisu Corrective Institution and was trying to escape. During the escape he was caught by warders at the C.I.S. and in the process was seriously assaulted. And further following the assault he was denied medical treatment. The most serious aspect of the assault is an axe wound to the right achilles tendon and because of the failure to properly treat it he now has a permanent disability in the use of his right ankle and foot. 

The State has denied responsibility and the assault alleging that during the escape the plaintiff injured himself in attempting to climb over the security fence and the wires on the fence cut his achilles tendon. 

The evidence for the Plaintiff is that he and another prisoner Joseph Kerenga were spending time in the detention cell at the gaol and they managed to break out of the cell and were escaping. They had got over the first fence and then the second fence and were attempting to scale the third fence when they were apprehended by the warders who had come to the alert when the alarm sounded. The plaintiff then alleges that the warders deliberately chopped his achilles tendon saying "such men as these cause us a lot of problems so we must chop their legs". He said that they then chopped him with a tomahawk and he fell unconscious and he was brought to the administration block where he and Joseph were put onto a vehicle and taken to the police station in Mount Hagen to be charged with escaping. The Plaintiff agrees that at the top of the second fence there was some razor wire however he states that there was a small gap at one point where they could get over and avoid the razor wire so suggesting that he was not cut by the razor wire. He suggests that they were running between the fences but then he agrees that the warders who came to chase and apprehend them one of them was in civilian clothes thereby suggesting that he was called out to help when the escape was discovered. So this suggests that the plaintiff and Joseph could not have been moving so very fast.

Joseph gives a slightly different story of the actual escape saying that they climbed the first fence and then the second fence and did not get any injury but that after the second fence the plaintiff was about 30 metres ahead of him when he was apprehended by guards and chopped and fell onto the ground. Although he was far away Joseph said there were security lights and he could see clearly. He said the person who cut Alphonse was a C.I.S. warder with civilian clothes. 

On this aspect of the story the State gives no evidence, they do not call the warders who actually apprehended the plaintiff and the other prisoner. They just call warders who confirm the fact of the escape and the apprehension of the plaintiff and other prisoner. Thus the State does not contradict the assault on the plaintiff by warders, the State merely asks the court to infer that the injury could have been caused by slipping whilst climbing the fence. I do not think that a court can act on hypotheses against sworn evidence. So at this stage I am left with a plausible story of the plaintiff about how he got the initial injuries. I am satisfied on the evidence that the Plaintiff was unlawfully assaulted by officers of the C.I.S. whilst being apprehended during an escape. 

The evidence is then that the two escapees were taken to the administration centre at the compound. The evidence of Mr Kingall the Gaol Commander is that he came down to the compound and saw the plaintiff lying on the ground bleeding and told the warders to put him into the back of the vehicle and when the second escapee had been caught they were both taken into the Police Station in Hagen. When asked if he arranged for the plaintiff to have medical treatment that night he said "not that night, they were taken straight to the police station." He said they received medical treatment when they were returned from the police station, but that apparently was at least a couple of days later. This is a disturbing aspect of what happened, namely a person is injured and bleeding but there is no attempt to attend to the injuries, the medical orderly who attended when the plaintiff was captured was not told to attend to him, instead according to strict procedures for the dealing with prisoners who escape he was to be taken to the police station without any attention at all. Then at the police station whilst there was concern expressed by the police that the plaintiff was injured and the police were concerned not to be held responsible themselves no one did anything about getting any treatment. So here was a man injured and bleeding but being ignored like a helpless animal just because he happened to be a prisoner. Whilst prisoners may lose certain rights they do not lose the right to be treated properly and fairly as human beings and to be accorded proper medical treatment. Prisoners are not outlaws.

The plaintiff spent a couple of days in the police cells on the charge of escaping then was returned to Baisu. Here there is conflict in the evidence. The plaintiff saying he still did not receive any medical treatment however the medical orderly giving evidence that he did. The Plaintiff said he did not see the medical orderly for his leg but instead one of the prisoners told his wife and she brought some medicine for him. He says he was not taken to hospital for any treatment nor was he seen by any doctor until a Dr McKup came especially on request for him and treated him. However in cross-examination he then did admit that the Government doctor, a Dr Flynn, did see him.

The medical orderly Arnold Wilinget gave evidence of attending when the escape alarm was sounded and saw the two escapees being taken away. He then attended them later when they returned from the police cells. He said the plaintiff had a deep cut on his ankle, a major tendon appeared to be cut, and he treated it and recommended that he be taken to Hagen Hospital however there were transport difficulties so as there was a doctor attending the gaol every week he left it for the visiting doctor. He said that Dr Flynn did attend to him and recommended he just continue to treat the injury as there was nothing that could be done about the tendon and it would heal itself. The orderly said that eventually the wound healed. He produced the Daily attendance register to confirm that the first attendance was on 15 May two days after the escape. He said this only recorded the first attendance and not the further ones. He insisted that he had continued to treat the plaintiff. I believe the evidence of the medical orderly that he did attend to and treat the injury, I find that the plaintiff appeared to be too vague and even evasive about this part of his evidence.

The Plaintiff now says that because of the injury to his ankle and because of the lack of treatment his Achilles tendon never repaired and he now has a permanent disability namely the weak ankle which means he cannot walk fast or run. There is quite a substantial scar on the ankle and that leg appears to be wasted a bit compared with his other leg. He says that his ankle and thereby leg is not strong and he cannot do all the work now. He is suggesting that he cannot work and maintain his coffee trees as well now because of the weakness in his ankle. 

Medical evidence was given by Dr McKup that he did see the Plaintiff when he was in custody at Baisu gaol after the escape incident, he was called in to see the plaintiff, to examine the injury to the Achilles tendon. He examined him on 11 July 1992 which was 2 months after the escape. He confirmed there was a chronic ulcer over the right Achilles tendon and the Plaintiff walked with a limp. He assessed the injury as being permanent being 100 percent loss of the tendon. He noted other facial scars. When he examined the plaintiff in June this year he noted that the injuries had healed and that because of the injuries to the Achilles tendon the plaintiff is unable to walk fast or run and that the ankle function and generally the right leg function has been reduced by 50 percent. So it appears that in spite of the original assessment of 100 percent loss there has been some natural healing following the treatment. Dr McKup did agree that now with the passage of time the plaintiff has some function in the tendon. I note that the plaintiff was walking with a slight limp. Dr McKup did suggest that the plaintiff could have had surgery at the time to sew back the tendon. 

Whilst there was some neglect in adequately treating the Plaintiff namely the refusal to properly treat him over the day or two immediately following the assault, I am satisfied the Plaintiff was accorded adequate treatment since.

In the case Kofewei V Siviri & Os & The State [1983] PNGLR 449 there is a detailed analysis of the role of Police as servants or agents of the State and the liability for acts of the police for actions within the scope of their employment or functions. I am satisfied that the acts of the officers of the Correctional Institution Service come within the same principles and the State may therefore be liable in damages in the same way for the actions of their officers.

I am satisfied the State is liable to the Plaintiff for the actions of the C.I.S. officers in unlawfully assaulting him such that his leg was cut and he was not accorded proper treatment immediately.

DAMAGES

General Damages are to cover the pain and suffering and temporary disability and some long term disability and thus loss of enjoyment of life from the fact that the plaintiff now has a weakness in the ankle. The main injury was a cut to the back of the ankle which apparently severed the Achilles Tendon. The reports suggested first a full disability but then that was reduced in a later report, however it is clear that over a period of time there has been some natural improvement.

There are a number of cases where damages have been awarded for various degrees of disability with leg injuries. The medical report suggests now a 50 percent reduction in the right leg function through the injury to the Achilles tendon. In the case Piam v The State [1988-89] PNGLR 651 a 50 year old man suffered 50 percent loss of efficient use of the knee and figures of K8,000 for general damages and K5,000 for future economic loss at subsistence level were considered. In the case Moia v The State [1988] PNGLR 299 a 35 year old man received fracture to both legs and there was malunion and general damages was assessed at K20,000. In the Case Tambi v The State [1988-89] PNGLR 648 a 32 year old driver incurred 35 percent loss of the efficient use of the leg and general damages was assessed at K15,000. In Kiak v Tura & MVIT [1986] PNGLR 265 there was a compound fracture of tibia and fibula and general damages of K29,000 was awarded.

From the above there is a fairly wide range. However I feel that the injuries in the case are not so severe as in the more severe of the above and I feel that the plaintiff's injuries are closer to those in Piam's case and Tambi's case. I will assess an amount of K14,000 for general damages. He is also claiming economic loss on the basis that because of the injuries and disability and weakness in the leg he is unable to fully participate in the village part subsistence and cash crop economy. He said he used to grow and sell vegetables and had coffee and is unable to now be active. However the evidence is rather vague with figures of K1,900 suggested as his annual productivity. Any figure as an averaging of the annual reduction of his possible output must be purely an estimate although I must accept that there would be some reduction because of the weakness he now has. I feel that I am only in a position to estimate a global figure for future economic loss at the subsistence level. I will assess a global figure of K7,000 for future economic loss. 

I will assess interest at 8 percent on part of the General Damages. 

The plaintiff is also seeking exemplary Damages.

It is clear that the actions of the C.I.S. warders exceeded their authority and were therefore illegal and the State is vicariously liable for the injury suffered by the Plaintiff. However exemplary damages have been regarded as a mark of public censure against excessive misconduct. Exemplary damages are not to unjustly enrich a party but rather are symbolic of the public's indignation.

In cases like this where C.I.S. warders have obviously acted too strongly unless there is a clear Government policy or directive for the C.I.S. to so act how can the people as embodied in the Preamble of the Constitution as The State be punitively responsible for conduct which is really conduct in the independent discretion of the individual officers involved. This Court has no hesitation in finding that the State will be liable for the actual injuries but how can we find that the State is also liable for the punitive aspect of the action which is really action that came from the mind of the protagonists. So whilst the independent discretion rules does not apply for the tortious damages it can still apply when considering exemplary damages.

I realise that the Court has in certain instances awarded exemplary damages against the State for actions of State officers but perhaps those awards have not considered properly the relationship of the independent discretion when it considers the punitive aspect of the awards. In some of those cases the individual policeman or officers were named as a party so exemplary damages may have been appropriate. I will not award exemplary damages against the State because there is no evidence that this action was officially sanctioned by State policy or directives. And there is no individual C.I.S. officers named in the writ I am unable to consider such an award against them.

To summarise;

General damages	K14,000.00	
Interest on part	558.90	
Future economic loss	7,000.00	
Total	K21,558.90	

I order Judgement for the Plaintiff in the sum of K21,558,90.

Lawyer for the Plaintiff: D.L. O'Connor
Lawyer for the Defendant: Solicitor-General