N2978
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 624 OF 1997

PETER KOL

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mt Hagen: Cannings J
2004: 8, 11 November,
2006: 21 February

JUDGMENT

DAMAGES – trespass to the person: assault and battery – malicious prosecution – negligence – breach of constitutional rights – assessment of damages following entry of default judgment – merger of causes of action – award of K13,000.00 general damages – special damages of K882.00 – plus interest and costs

The police at Kundiawa assaulted, arrested, detained and charged the plaintiff, a storekeeper. He was punched and suffered an eye injury. He was charged with obstructing police. He was required to attend the District Court on several occasions before the case was dismissed when the police failed to attend court. He commenced proceedings against the State relying on assault, negligence, false imprisonment, malicious prosecution and breach of constitutional rights as causes of action. He claimed general damages for being locked up, mental distress and anxiety, inconvenience, damage to reputation, plus special damages. Liability had been established by entry of default judgment and a trial was held on assessment of damages.

Held:

(1)	Once a default judgment is entered the factual elements of the causes of action as pleaded and their legal consequences are taken as proven. William Mel v Coleman Pakalia and Others (2005) SC790 followed.

(2)	If it is convenient to clearly delineate how different causes of action have caused different injuries, damages should be assessed separately. However, if the same facts give rise to different causes of action, the causes of action are best regarded as merging, in which case damages should be assessed as a whole. 

(3)	The court assesses damages by checking, in relation to each head of damage being claimed at trial, that it has been claimed in the pleadings and that there is evidence to support it.

(4)	General damages of K13,000.00 is assessed by comparison with previous cases on liability for malicious prosecution, bearing in mind the lack of evidence as to reputation and standing of the plaintiff before and after the malicious prosecution took place. 

(5)	Special damages of K882.00 is assessed on account of regular trips to consult a lawyer on the progress of the case. 

(6)	The defendants are also liable for interest and costs.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Jack Lundu Yalao v MVIT (1996) N1488
Jonathan Mangope Paraia v The State (1995) N1343
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Linda Stanley v Mathew Kawa and The State (2005) N2865
Lindsay Kivia v The State WS No 485 of 1991
Mahera Ignote v Abraham Hualupmomi and The State [1996] PNGLR 308 
Michael Buna v The State (2004) N2696
MVIT v Pupune [1993] PNGLR 370
MVIT v Tabanto [1995] PNGLR 214
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Pawa Kombea v Semal Peke [1994] PNGLR 572
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Peter Wanis v Fred Sikiot and The State (1995) N1350
Sale Dagu v The State (1995) N1316
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Teine Molomb v The State (2005) N2861
Waima v MVIT [1992] PNGLR 254
William Mel v Coleman Pakalia and Others (2005) SC790
Yange Lagan and Others v The State (1995) N1369
Yapi Koka v MVIT [1995] PNGLR 294
Yooken Paklin v The State (2001) N2212
ASSESSMENT OF DAMAGES 

This was a trial on assessment of damages for assault, negligence, malicious prosecution and breach of constitutional rights after entry of default judgment in favour of the plaintiff. 

Counsel

M Tamutai, for the Plaintiff
J Kolkia, for the Defendant

21st February, 2006 

1. CANNINGS J: This is a case about assessment of damages. The plaintiff, Peter Kol, has already obtained a default judgment, with damages to be assessed. He claims that he suffered damages because of assault, negligence, false imprisonment, malicious prosecution and breach of constitutional rights by officers of the Police Force. 

2. The plaintiff comes from Kamkale village, Simbu Province. He operates a mixed business at Malaria compound, Kundiawa town, Simbu Province. On the night of 27 March 1997 there was an incident involving him and the police at his store. 

3. On 8 July 1997 Tamutai Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff. The statement of claim attached to the writ pleaded that the police assaulted, arrested, detained and charged the plaintiff without good reason. In particular the allegation was that the plaintiff was minding his own business when a group of reserve policemen came to his store and assaulted his storekeeper, Vonma Elmai, without good reason. The plaintiff screamed at the policemen to stop. But they did not stop. Instead one of the policemen punched the plaintiff in the eye and injured him. Then the police arrested the plaintiff and detained him at the Kundiawa police lock-up. They charged him with obstructing the police contrary to Section 61 of the Summary Offences Act. He was released on bail the following day. Then he appeared before the District Court, for mention, on three occasions in April and May 1997. Eventually on 8 May 1997 the charge was dismissed as the arresting officers, James Kanua and Mark Sege, did not attend the hearing. The plaintiff relied on various causes of action:

•	the tort (ie civil wrong) of trespass to the person (constituted by the assault and battery upon his person by the police officer who punched him); 

•	the tort of negligence, in that the defendant was negligent in the supervision and control of the police officers involved; and 

•	the tort of false imprisonment (being detained in the police lock-up); 

•	the tort of malicious prosecution, in that he alleged that the Police had used the criminal process against him and were motivated by malice;

•	breach of basic rights under the Constitution, Sections 32 (right to freedom); 36 (freedom from inhuman treatment); and 37 (protection from the law). 

•	breach of Section 41 (proscribed acts) of the Constitution, in that the conduct of the Police was harsh and oppressive and not warranted by or disproportionate to the circumstances of the particular case.

4. The plaintiff claimed that the conduct of the police caused him physical pain and inconvenience (photophobia and blurred vision); mental distress, trouble, inconvenience and anxiety. His reputation as a well-behaved citizen and self-employed businessman in Kundiawa was injured. He also incurred legal expenses. He sought the following remedies:

•	general damages for assault, negligence, false imprisonment and malicious prosecution; 

•	a declaration that the conduct of the defendant's agents and servants (ie the police officers involved) breached his constitutional rights; 

•	exemplary damages; and 

•	special damages.

5. The State is the sole defendant.

6. On 11 June 1997 the plaintiff served the writ on the defendant. 

7. On 30 September 1997 the defendant gave notice of its intention to defend the claim. However, it did not file a defence. The plaintiff then applied for default judgment. He was successful. On 8 February 2000 Hinchliffe J ordered that default judgment be entered for the plaintiff and the matter set down for assessment of damages.

8. Eventually in November 2004, the trial on assessment of damages was held in Mt Hagen. 

PLAINTIFF'S EVIDENCE

Outline 

9. Eight documents were admitted into evidence. Five (exhibits A, F, G and H) were affidavits. The first affidavit, exhibit A, was by the plaintiff, Peter Kol. He gave oral evidence and was subject to cross-examination. The affidavits by the storekeeper, Vonma Elwai (exhibit E), and an eyewitness to the incident of 27 March 1997, Apane Matilina (exhibit F) were admitted into evidence by consent. The defendant's counsel, Mr Kolkia, objected to the admission of the two medical affidavits, by Dr Wau (exhibit G) and Dr Kubu (exhibit H), on the ground that neither of the deponents were available for cross-examination. I overruled the objection and they were admitted into evidence.

Documentary evidence

10. The evidence is summarised in table 1. Column 1 gives the exhibit number, column 2 describes the document and column 3 summarises the contents.

TABLE 1: SUMMARY OF DOCUMENTARY EVIDENCE

Exhibit	Description	Content 	
A	Affidavit:
Peter Kol, plaintiff, 
30.11.00	This affidavit gives an account of the incident in which he was punched and which led to his arrest, detention and prosecution. He states that he has suffered serious injuries to his eye.	
B	Hospital records,	Outpatient notes, recording swollen, black eye and blurred vision.	
C	Receipt	Kundiawa General Hospital receipt: Peter Kol, medical report, K20.00.	
D	Receipt	Goroka Base Hospital receipt: Peter Kol, medical report, K20.00.	
E	Affidavit:
Yonma Elwai, 19.12.00	Gives an account of the incident of 27 March 1997 – he and his son were also arrested, together with the plaintiff, and detained in police custody.	
F	Affidavit:
Apane Matilina, 19.12.00	Gives an eyewitness account of the incident of 27 March 1997 in which she says the plaintiff, Yonma Elwai and his son were bashed and arrested by the police. 	
G	Affidavit:
Dr Bonnie Wau, 26.10.01	States that, on the date of swearing the affidavit, he is Director of Medical Services at Kundiawa General Hospital. From the hospital records he is aware that the plaintiff was treated at the outpatients ward on 30 March 1997 for an injury to his eyes after being allegedly assaulted by police. On 24 May 1997 the plaintiff saw Dr Errol Siba, of Kundiawa General Hospital, who awarded him 30% loss of efficient use of the eye. Dr Siba's assessment was annexed to the affidavit. It states that the plaintiff's injury "may be permanent".	
H	Affidavit:
Dr T V Kubu, 28.08.01	States that on 16 July 2001 he was employed at Goroka Base Hospital. The plaintiff attended then for assessment of injury to his eyes after being allegedly assaulted by police. He saw the plaintiff and awarded him 60% functional and permanent disability.	

Oral evidence

11. The plaintiff Peter Kol adopted his affidavit in examination-in-chief. He gave an account of what happened on the night of 27 March 1997 and how he came to be assaulted, arrested, detained and prosecuted. After the District Court dismissed the case he was still not happy about the way that the police had dealt with the matter. His eye still feels weak. He cannot see objects clearly from a long distance. His eyelids are also weak. He has been coming to Mr Hagen about five times a year since 1997 to try to get his case sorted out. This costs about K10.00 each time. He has also made many trips to Goroka to see the doctors there. 

12. In cross-examination Peter Kol stated that the doctors who had examined him at Kundiawa and Goroka were not eye specialists but he needed medical advice so he saw them. Dr Kubu suggested that he buy some spectacles. He has tried to buy some in Mt Hagen but has not been able to find the right ones. 

13. In re-examination the plaintiff stated the doctors who prepared the reports on the condition of his eye had examined his eyes prior to preparing their reports. That ended the plaintiff's evidence. There was no other evidence and the plaintiff's case was closed.

THE DEFENDANT'S EVIDENCE

14. The defendant offered no evidence.

ROLE OF TRIAL JUDGE WHEN MAKING ASSESSMENT OF DAMAGES FOLLOWING ENTRY OF DEFAULT JUDGMENT

15. This issue was recently addressed by the Supreme Court in William Mel v Coleman Pakalia and Others (2005) SC790, Los J, Jalina J, Cannings J. The court endorsed the principles expressed by Kandakasi J in the National Court in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182 and by the Supreme Court in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J. The trial judge's role is:

•	to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; and 

•	if the facts and cause of action are reasonably clear liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim; 

•	only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability; 

•	the plaintiff has the burden of producing admissible and credible evidence of the alleged damages; 

•	any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability. 

THE CAUSES OF ACTION

16. The plaintiff has pleaded five causes of action: assault, negligence, false imprisonment, malicious prosecution and breach of constitutional rights.

17. I have examined the statement of claim and considered the evidence and I am satisfied that all causes of action are established. 
 
PLAINTIFF'S SUBMISSIONS

18. Mr Tamutai submitted that the plaintiff should be awarded damages of K57,882.00, as set out in table 2.

TABLE 2: PLAINTIFF'S CLAIM FOR DAMAGES

No	Component	Amount claimed (K)	
1	Damages for assault 	 35,000.00	
2	Damages for negligence	2,000.00	
3	Damages for false imprisonment	 5,000.00	
4	Damages for malicious prosecution	10,000.00	
5	Damages for breach of constitutional rights – general
 – exemplary 	4,000.00
1,000.00	
4	Special damages	882.00	
5	Total	 57,882.00	

19. As to damages for assault Mr Tamutai relied on three National Court cases in which plaintiffs had been awarded general damages for eye injuries:

•	Sale Dagu v The State (1995) N1316: Salika J awarded K20,000.00 to a 34-year-old man who suffered facial injuries and had to undergo eye surgery after a motor vehicle accident.

•	Jack Lundu Yalao v MVIT (1996) N1488: Injia J awarded K30,000.00 to a man who lost 95% vision in one eye after a motor vehicle accident. 

•	Lindsay Kivia v The State WS No 485 of 1991: Mr Tamutai says that the plaintiff was awarded K60,000.00 after losing 100% vision in one eye due to an assault by police. However, the case is unreported and I have been unable to verify the judgment.

20. Mr Tamutai submitted that the court should accept the evidence of Doctors Wau and Kubu as showing that the plaintiff suffered permanent and serious damage to his eye, resulting in a 60% loss of vision. The court does not have to be in possession of evidence from a specialist. As Woods J pointed out in Yapi Koka v MVIT [1995] PNGLR 294, National Court the evidence of a general practitioner (GP) is acceptable if a specialist is not readily available and the GP has a good appreciation of the local conditions.

21. As to damages for negligence Mr Tamutai relied on David Kofowei v Augustine Siviri and Others [1983] PNGLR 449, National Court, Ramage AJ. In that case the plaintiff was apprehended by two police officers regarding his alleged possession of a stolen handbag. He was taken to Goroka police station and detained for four days, the first two being handcuffed. He was assaulted and subject to inhuman treatment. He sued the police officers involved and the State, claiming damages for false imprisonment, assault, negligence and breach of constitutional rights. He won the case. Ramage AJ awarded K3,800.00 for the assault; K3,500.00 for breaches of constitutional rights; and K1,000.00 for negligence (which consisted of the failure of the officer-in-charge of the police station to take the plaintiff promptly before a court contrary to the Arrest Act). The K1,000.00 on account of negligence consisted of general damages of K600.00 and exemplary damages of K400.00. Mr Tamutai submitted that as Kofowei was decided more than 20 years ago, I should take the sum awarded as a guide and increase it because of inflation to K2,000.00.

22. As to damages for false imprisonment Mr Tamutai asked that Kofowei be used as a guide and the plaintiff be awarded K5,000.00.

23. As to damages for malicious prosecution Mr Tamutai relied on Pawa Kombea v Semal Peke [1994] PNGLR 572, National Court, Kapi DCJ. The plaintiff in that case was arrested, detained for four days and then charged with rape. He was prosecuted over a considerable period in which he had to make numerous court appearances. The plaintiff was a prominent member of the community and a long-serving member of the Southern Highlands Provincial Assembly. The complaint against him was false. He sued the person who made the false complaint, claiming damages for malicious prosecution, false imprisonment, and defamation. He won the case. The court awarded general damages of K15,000.00 for the malicious prosecution (comprising K2,500.00 for issue of a search warrant, K7,500.00 for criminal proceedings and K5,000.00 for civil proceedings); K4,000.00 for false imprisonment; and K10,000.00 for defamation. The court awarded special damages of K21,198.67. The total amount of damages was K50,198.67. As Kombea was decided more than ten years ago the sum awarded should be K10,000.00 (criminal proceedings). This was a serious breach as the plaintiff was dragged before the court and the police ended up offering no evidence. 

24. As to damages for breach of constitutional rights Mr Tamutai urged me to again use Kofowei's case as a guide. He conceded that the plaintiff in the present case was not subject to inhuman treatment to the same extent as the plaintiff in Kofowei. But he had been 'taken for a ride' by the Police who did not care about his human rights. He submitted that K5,000.00 would be an appropriate award of damages, comprised of K4,000.00 for general damages and K1,000.00 for exemplary damages.

25. As to special damages Mr Tamutai submitted that this should include the costs of travel to Goroka to secure the medical report, the costs of obtaining the reports themselves and the costs of monthly return trips to Mt Hagen for legal consultation since 1997.

DEFENDANT'S SUBMISSIONS

26. Mr Kolkia conceded that the evidence established that the plaintiff was assaulted by the police both at his residence and at the police lock-up. He should be awarded K1,000.00.

27. As to false imprisonment, Mr Kolkia argued that the elements of the cause of action were not made out by the facts. However, if the court found otherwise, the plaintiff should be awarded K500.00.

28. The elements of malicious prosecution were also not present. Mr Kolkia referred to Akuram AJ's decision in Mahera Ignote v Abraham Hualupmomi and The State [1996] PNGLR 308 in support of that proposition. In Ignote the plaintiff's case failed as there was no evidence of malice. If, however, the court is inclined in the present case to award damages for malicious prosecution the sum awarded should be small as there was no evidence of the plaintiff's purported high standing in the community. Also this was a relatively minor instance of malicious prosecution. The plaintiff, if he is to be awarded anything, should get K4,000.00.

29. As to negligence the claim is misconceived as there is no evidence in support of this cause of action. 

30. As to the alleged breach of constitutional rights and exemplary damages Mr Kolkia submitted that this was not properly pleaded. The court should not make any award of damages.

31. An amount of K882.00 for special damages is reasonable, Mr Kolkia submitted. 

32. As to the damage to the plaintiff's right eye Mr Kolkia submitted that the medical evidence was inconsistent and unreliable. Nothing should be awarded for this injury.

RELEVANT LAW 

33. In a recent Mt Hagen case, Michael Buna v The State (2004) N2696, I reviewed the general principles for assessment of damages, particularly as they apply to cases where default judgment has been entered and there is a trial on damages only. In that case the provincial works department did some river excavation work, changed the course of a river and flooded the plaintiff's land. The plaintiff sued for damages, pleading negligence as his cause of action. Default judgment had been entered. I awarded the plaintiff K33,800.00 damages plus interest. The same principles for assessing damages apply, irrespective of the cause of action. They include the following:

•	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, National Court, 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, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia AJ.) 

•	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, National Court, 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, National Court, 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, National Court, 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, National Court, 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, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

•	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. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

FINDINGS OF FACT

Relevant considerations 

34. All of the above principles have been taken into account in making findings of fact in the present case. 

35. The most pertinent findings to make are those that indicate the actual injury or damage suffered by the plaintiff. I will make those findings on the presumption that the basic facts pleaded in the statement of claim that relate to the elements of the cause of action pleaded are true. 

36. I am not persuaded by Mr Kolkia's invitation to revisit those facts and determine whether they are supported by the evidence as part of a process of confirming that the elements of the causes of action have been made out. I have already satisfied myself that the elements of the causes of action have been established.

The basic facts

•	The plaintiff is a small businessman at Kundiawa. In March 1997 he was assaulted, arrested and detained overnight by the Police at Kundiawa Police lock-up.

•	The plaintiff was not tortured or treated inhumanly during the period of his detention.

•	He was charged with obstructing police. He was required to appear before the District Court four times. On the fourth occasion the charge was dismissed because the police failed to turn up to prosecute the charge. 

•	The conduct of the police – and the defendant's failure to properly supervise them – was negligent. The police were guilty of maliciously prosecuting the plaintiff and their actions were harsh and oppressive and therefore unlawful under Section 41 of the Constitution.

What was the actual damage or injury?

37. I now turn to consider what the effect of those actions was. What damage or injury did the plaintiff actually suffer? Did he suffer mentally or physically? Did he lose business? Was his reputation tarnished? Was his prosecution publicised in the local community or the mass media?

38. As for the physical injuries sustained by the plaintiff I uphold Mr Kolkia's submission that the medical evidence is inadequate. Mr Tamutai tried to convince the court that the evidence shows that the plaintiff suffers from a permanent and serious loss of sight of the order of 60% vision in one eye. This was always going to be a difficult task as the affidavits by the two doctors was not specialist evidence, it was not recent, it was quite vague and inconsistent and the doctors were not made available for cross-examination. All that has been proven is that the plaintiff was punched in the eye. He suffered a black eye and blurred vision. He still suffers some poor vision. That is about all that can be said. Where a claim for damages for physical injuries is concerned the court must insist on a reasonably high standard of evidence. The medical evidence in this case fell well below the required standard. For the sake of fixing a figure on which to work, I conclude that the evidence establishes that the plaintiff suffered a 10% loss of vision in one eye due to the assault.

39. As to the effect of his prosecution on his reputation, the plaintiff presented no corroborating evidence of his standing in the community or how his reputation had suffered or losing business or the matter being given publicity. There is little for the court to go on. In cases of this nature, much as in a defamation case, the court should receive evidence of (a) the reputation enjoyed by a plaintiff before the tortious act was committed and (b) evidence of how it was affected, perhaps destroyed, by that act. A 'before and after' picture should be presented, so that the court can assess the extent of the injury and therefore the amount of damages that should be awarded (Teine Molomb v The State (2005) N2861, National Court, Cannings J).

40. Having said that, it does not follow that I should find that the plaintiff in this case was a 'small' man with no reputation worthy of protection and that he was unaffected by what happened to him and that he is a liar. I am entitled to draw inferences from the evidence presented and I can assess the plaintiff's demeanour and his creditworthiness as a witness. I can make findings based on what is reasonably regarded as the ordinary and natural consequence in a village environment of a person being arrested, detained and charged by the police. I can also consider how a reasonable person would be psychologically affected if he were harshly and oppressively arrested, detained and charged criminally without good reason. And what a reasonable person would have done to consult his lawyer. 

41. I conclude that the plaintiff has proven the following matters on the balance of probabilities and therefore record them as findings of fact:

•	The plaintiff was and is a man of moderate means, running a small business in Kundiawa.

•	He is neither a prominent businessman nor a community leader.

•	He was upset and distressed – to the same degree any reasonable person in his position would have been – when he was arrested and detained and then charged for no good reason. 

•	He was badly assaulted but did not suffer extensive permanent injuries.

•	He was not tortured or inflicted with any inhuman treatment when he was detained.

•	He did not suffer any long-term mental or psychological disturbance as a result of what he went through.

•	Some people thought he had done the wrong thing. But his reputation was not significantly spoiled or, if it was, not for very long.

•	His business did not suffer.

•	His plight was not given wide publicity. Few people outside the village knew about what happened. It was not reported in the media.

•	He has been inconvenienced by having to travel to Mt Hagen regularly since 1997 to sort things out with his lawyer. 

ISSUES OF LAW 

42. This case is very similar to another malicious prosecution case I recently decided in Mt Hagen: Teine Molomb v The State (2005) N2861. The police arrested, detained and charged the plaintiff, a villager, with possession of stolen property (45 day-old chickens) and possession of unlicensed firearms and ammunition. The plaintiff was acquitted in the District Court of one charge and the other charges were not pursued. He was required to attend court on seven occasions before all matters were resolved. He commenced proceedings against the State relying on malicious prosecution, negligence and breach of constitutional rights as causes of action. He claimed general damages for being locked up, mental distress and anxiety, inconvenience, damage to reputation, plus special damages. Liability had been established by entry of default judgment and a trial was held on assessment of damages.

43. I concluded that if it is convenient to clearly delineate how different causes of action have caused different injuries, damages should be assessed separately. However, if the same facts give rise to different causes of action, the causes of action are best regarded as merging, in which case damages should be assessed as a whole. I concluded that the causes of action merged and awarded general damages of K9,000.00, after considering that malicious prosecution was the dominant cause of action. 

44. I will take the same approach in the present case and accordingly raise the following legal issues:

•	Should damages for each cause of action be assessed separately?

•	What heads (ie categories) of damages have been claimed in the pleadings? 

•	Is there evidence to support each head?

•	What amount of damages should be awarded for each head of damage?

•	What amount of interest, if any, should the plaintiff receive?

DEALING WITH SEPARATE CAUSES OF ACTION

45. Mr Tamutai submitted that the five causes of action (assault, negligence, false imprisonment, malicious prosecution and breach of constitutional rights) should be dealt with separately and an award of damages made for each. Mr Kolkia seemed to agree to some extent in that he favoured the idea of the court making an award for the different causes of action (though he argued that the assessment for most of them should be zero). 

46. As I pointed out in Teine Molomb v The State (2004) N2861, there is authority for dealing with each one separately. That is what happened in Kombea. On the other hand in Kofowei the court was careful not to award double claims for the same cause of action. For example holding the plaintiff in the cell for three days before taking him before a court constituted two torts – negligence and false imprisonment – but only gave rise to one award of damages.

47. Each case must be treated on its merits. If it is convenient to clearly delineate how different causes of action have caused different injuries, damages should be assessed separately. But if the same facts give rise to different causes of action it will be difficult, and a rather artificial forensic process, to allot different categories of injury to each one; so the causes of action are best regarded as merging, in which case damages should be assessed as a whole. 

48. I think the assault, which resulted in a physical injury, should be dealt with separately. As for the other causes of action, the facts that established them and the consequences of them – inconvenience, mental anguish, damage to reputation – were essentially the same. They should be dealt with together. The case lends itself to being treated as a malicious prosecution case. That means that previous cases assessing damages for malicious prosecution will provide the most useful precedents. 

HEADS OF DAMAGES CLAIMED

49. The plaintiff has properly claimed for two heads of damages:

•	General damages. This was separately pleaded for five causes of action. But, as indicated above, only two assessments will be made. 

•	Special damages, which was particularised at the trial as being for transport and costs of medical reports. 

50. I say that the plaintiff has 'properly' claimed only two heads of damages as Mr Tamutai in his submissions asked for two awards of damages that went beyond the pleadings. First, he submitted that an award should be made for breach of constitutional rights. However the statement of claim only asks for such relief as an alternative to damages for assault, negligence, false imprisonment and malicious prosecution. It only asks for a declaration that Section 41 of the Constitution was breached. It does not seek damages for the breach. Secondly Mr Tamutai submitted that exemplary damages should be awarded. However, exemplary damages were also only sought as an alternative remedy in the statement of claim. 

51. I will therefore not award amounts for general damages on account of breach of constitutional rights or exemplary damages.

EVIDENCE

52. There is sufficient evidence to make an award of damages under each of the heads of general damages and special damages.

AMOUNT OF DAMAGES

General damages for assault 

53. In a recent Mt Hagen case I awarded K25,000.00 general damages to a lady who was negligently shot in the eye by police and lost 50% vision in one eye: Linda Stanley v Mathew Kawa and The State (2005) N2865. I reviewed a number of cases involving assessment of damages for eye injuries in the course of arriving at that figure. Using that as a base and in light of my findings of fact that the plaintiff has lost 10% vision in one eye, I award general damages for the plaintiff's eye injury of K5,000.00.

General damages for negligence, false imprisonment, malicious prosecution and breach of constitutional rights 

54. I consider that plaintiff has adequately pleaded four sub-categories of damages:

•	deprivation of liberty, by being in the police lock-up unnecessarily; 

•	general distress and anxiety resulting from being locked-up and then facing criminal charges;

•	inconvenience of going to and from the court on several occasions; and 

•	effect on his reputation.

55. Comparing this case with Molomb, I find many similarities though the present case does not seem as serious. I reviewed a number of malicious prosecution cases in Molomb before assessing general damages of K9,000.00. Using that as a base I award general damages for distress, inconvenience and damage to reputation of K8,000.00.

Special damages

56. The claim for special damages has been acceded to and seems reasonable. I award K882.00.

Total

57. The plaintiff will therefore obtain an award of damages comprising:

•	general damages of K13,000.00; plus

•	special damages of K882.00. 

The total award of damages is K13,882.00.

INTEREST

58. In his statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:

(1)	Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2)	Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

59. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run. I exercise that discretion in the following way:

1 	A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The court will order that interest be included in the sum for which judgment is given. 

2 	As this is a claim against the State, the maximum rate that can be awarded is, by virtue of Section 1(2), 8%. In view of current economic conditions in the country, 8% is, I think, the proper rate of interest. 

3 	Interest should be payable on the whole of the sum of damages for which judgment is given. 

4	The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. The cause of action arose on the day the plaintiff was arrested and assaulted, 27 March 1997. The date of judgment is February 2006. The appropriate period is therefore 8.92 years.

60. I calculate the amount of interest by applying the following formula:

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

Therefore:

•	K13,882.00 x 0.08 x 8.92 = K9,906.20

61. I will order that there be included in the sum for which judgment is given, interest of K9,906.20.

COSTS

62. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule. 

JUDGMENT

63. The Court directs entry of judgment in the following terms:

1	damages, payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Peter Kol, in the sum of K13,882.00; plus

2	interest, payable by the defendant, the Independent State of Papua New Guinea, to the plaintiff, Peter Kol, in the sum of K9,906.20;

3	being a total judgment sum of K23,788.20;

4	in the event that that total judgment lump sum is not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8% yearly from the date of entry of the judgment on so much of that total judgment lump sum as is from time to time unpaid; 

5	costs to be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed. 

Judgment accordingly.
__________________________________________________________
Tamutai Lawyers: Lawyers for the Plaintiff
Paul Paraka Lawyers: Lawyers for the Defendant