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Yama v Minok, Police Commander [2002] PGNC 130; N2198 (17 May 2002)

N2198

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT MT. HAGEN]

WS. No. 266 of 1998

BETWEEN:

JOHN YAMA FOR HIMSELF AND
CUSTOMARY REPRESENTATIVES FOR
LUKAS BEREM, BEPI, EKA, JOHN NABUTA AND JOY SENT
Plaintiff

AND:

MATHEW MINOK, POLICE COMMANDER
First Defendant

AND:

PETER AGILO, POLICE COMMISSIONER

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mt. Hagen: Kapi DCJ
13th & 17th May 2002

DAMAGES – Exemplary damages – Discretion to award – circumstances when exemplary damages may be awarded.

Cases cited:
David Wali Kofewi v The State [1983] PNGLR 449
Abel Tomba v The State [Unreported judgment of the Supreme Court dated 7th April 1997, SC578).
Andale More and Manis Andale v Henry Tokam and The State (Unreported judgment of the National Court dated 26 September 1997

Legislation referred to:
Wrongs (Miscellaneous Provision) Act (Ch. 297)
Claims By and Against the State Act 1986.

Counsel:

P. Dowa for the plaintiff

B. Ovia for the defendants

17th May 2002

KAPI DCJ: The plaintiff sued the defendants for damages arising out of a police shooting of the deceased Noki Yama at Togoba near Mt Hagen. The claim is brought under the provisions of Wrongs (Miscellaneous Provisions) Act (Chapter 297).

Default judgment was entered for the plaintiff on 15th November 2000 and the matter came before me for assessment of damages.

The parties settled all heads of damages except the question of exemplary damages. For the purposes of this issue the parties agreed to the following facts. On the morning of 23rd June 1997 at about 10.30 am, the deceased Noki Yama was with her daughter waiting on the road to catch a PMV to come to Mt Hagen. While she was waiting, an unspecified number of police with Defence Force soldiers came by in police vehicles. The police started shooting at the crowd in the market nearby. A bullet hit the deceased and she died instantly. She fell on top of the daughter who received serious injuries. The claim for damages for personal injuries by the daughter is the subject of a separate cause of action. The deceased was not involved in any kind of wrong - doing. She was an innocent person waiting to catch a PMV on the road.

Counsel for the defendants submits that the State should not be liable to pay any exemplary damages on the basis that the actions of the police were completely outside the scope of their functions authorized by law. He relies on Andale More & Manis Andale v Henry Tokam & The State (Unreported judgment of the National Court dated 26th September 1997, N1641). That was a case in which the police were called into the area to negotiate peace amongst Mulyapin and Aiyakan clans both of the Tangula tribe. They were appropriately armed to quell any trouble that might arise. They talked with one of the clans without any incident. When the police came to the deceased’s territory, the policeman concerned saw it necessary to use the high powered gun against a group of men hiding on the ridges on the watch for their enemy clansmen and guarding the territory. In so doing he shot the deceased.

The trial judge discussed the law as set out in the Supreme Court case of Abel Tomba v The State (Unreported judgment of the Supreme Court dated 7th April 1997, SC578) and David Wali Kofewi v The State [1983] PNGLR 449. He also referred to s 1 (4) of the Wrongs (Miscellaneous Provisions) Act. Applying these principles, he concluded that it was not necessary for the policeman to fire the gun and that he was not authorized to do so by law. Consequently he refused to make an award for exemplary damages in the exercise of his discretion.

The State is protected from paying exemplary damages under s 12 of the Claims By and Against the State Act 1986, unless there has been a severe breach of a Constitutional right. I am satisfied in the present case that the shooting of the deceased without any lawful excuse is a severe breach of the right to life.

The circumstances in which the State may be held liable for exemplary damages are discussed in the judgment of Injia J in Andale More and Manis Andale v Henry Tokam and The State (supra). The question I have to determine is whether the shooting of the deceased in the present case was committed within the scope of police functions authorized by law? There is no evidence to explain why the policemen open fired at the deceased let alone shot at the crowd in the market. The actions of the police on this occasion were way out of their powers under the law. There is no suggestion that the, Commander or Commissioner of Police gave instructions to the police to use firearms in this manner. For these reasons, I would not award exemplary damages against the State in the exercise of my discretion.

The particular policeman or policemen who shot the deceased have not been identified or joined as parties in this action and therefore no order can be made against them. I would dismiss this head of damages with costs to the defendants.
_____________________________________________________________________________
Lawyers for the Plaintiff : Paulus M. Dowa
Lawyers for the Defendants : Acting Solicitor General