N3571

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1091 OF 2006

LANCE KOLOKOL
Plaintiff

V

CONSTABLE GEORGE AMBURUAPI
First Defendant

CONSTABLE JOSHUA KASS
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2008: 12 September
2009: 27 January

JUDGMENT

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – breach of human rights – unlawful actions of police – vicarious liability – degree of loss of leg.

The plaintiff was walking with friends near a public road. When he saw the police, he ran away. He was chased on suspicion of being involved in an armed robbery. He was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail. He sued the police officers who assaulted and shot him, and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants, with damages to be assessed. This is the trial on assessment of damages.

Held:

(1)	This was a case where compensation for breaches of human rights should be assessed separately from general damages (covering pain and suffering, loss of functionality of the plaintiff’s leg etc).

(2)	General damages were assessed at K25, 000.00.

(3)	The plaintiff’s human rights were breached on four distinct occasions:

•	when he was shot the first time;
•	when he was shot the second time;
•	when he was assaulted;
•	when he was denied medical treatment.

(4)	On each of those occasions, three of his human rights were breached:

•	protection from inhuman treatment (Constitution, s 36);
•	right to the full protection of the law (Constitution, s 37(1));
•	right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, s 37(17)).

(5)	He was awarded K5, 000.00 x 4 = K20, 000.00 compensation.

(6)	Special damages were assessed at K204.00.

(7)	The breach of constitutional rights was so severe or continuous as to warrant an award of exemplary damages, of K10, 000.00.

(8)	The total amount of damages awarded was K55, 204.00.

(9)	In addition, interest of K16, 782.00 is payable, making the total judgment K71, 986.00.

Cases cited:

Abel Tomba v The State (1997) SC518
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Latham v Henry [1997] PNGLR 435
Milia Yongole Kuri v Walter Kapty & NHC, WS No 1775 of 2004, 20.02.08
Ngants Topo v The State (2008) N3478
Pawa Kombea v Semal Peke [1994] PNGLR 572
Peter Kuriti v The State [1994] PNGLR 262
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Teine Molomb v The State (2005) N2861
William Mel v Coleman Pakalia and Others (2005) SC790

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigation Division
J – Justice
K – Kina
Ltd – Limited
N – National Court judgment
NHC – National Housing Corporation
No – number
PNGLR – Papua New Guinea Law Reports
Pty – Proprietary
SC – Supreme Court judgment
v– versus
WS – Writ of Summons

TRIAL

This is a trial on assessment of damages.

Counsel

W Akuani, for the plaintiff
No appearance for the defendants

27 January, 2009 

1. CANNINGS J: The plaintiff, Lance Kolokol, has successfully sued the State for breach of his human rights by members of the Police Force. Default judgment has been entered. The plaintiff has come to the court for an assessment of damages.

THE INCIDENT

2. His human rights were breached by members of the Police Force on the night of Friday 8 April 2005 in Madang town. The plaintiff was a 17-year-old grade 11 student at Tusbab High School. He was walking near Modilon Road with a group of friends. They were returning home after going for a walk to buy betel nut. It was 8.00 pm. Shortly beforehand there had been an armed robbery in town. The plaintiff was not involved in the robbery. A police unit was mobilised. It was cruising along the road looking for suspects. The plaintiff and his friends were about to turn on to the bush track that runs between Modilon Road and Kibilak Crescent in Newtown. The police saw the group, turned the vehicle in the direction of the track, flashed the vehicle lights on them and motioned them to stop.

3. The plaintiff saw that the police were armed. He was scared. He ran, with his friends, along the track. The police fired shots. The plaintiff kept running. He jumped into tall grass to hide, to no avail. The police caught him there. Constable Joshua Kass (the second defendant) shot him in the left thigh with a rubber bullet, then dragged him to Modilon Road. Three police vehicles were there. Constable Kass and other police officers interrogated him. They asked him where his gun was. He replied that he had no gun. They asked for the names of his friends. He refused to give their names. The police kicked and assaulted him. Constable George Amburuapi grabbed him by the trousers. He pulled him back along the bush track where he shot him in the left ankle with a live bullet.

4. The plaintiff lost blood and was in severe pain. He was taken back to the police vehicles. They went to the nearby Jomba police station. Then he was taken to Newtown. He was forced to tell the police where his friends’ houses were. His friends were rounded up. They were assaulted too. He was taken back to the police station. He witnessed his friends being kicked and beaten with pieces of rubber hose. He was not further assaulted because of the condition he was in.

5. He was detained overnight in the police lock-up. The wound continued to bleed. He remained in pain. He feared dying through loss of blood. He was given no medical treatment until 9.00 am Saturday when the police took him to Modilon General Hospital. After getting treated, he was taken to the CID office in town. Statements were taken, then he was taken back to Jomba. He remained there until Monday 11 April. He made a court appearance and was granted bail.

6. He went back to the hospital that day, and was admitted to the surgical ward. His leg was operated on and put in plaster. He remained there for four days. 

7. He and his friends were told that they were under arrest for armed robbery. But the only thing they were charged with was being in possession of a dangerous weapon, a metal-handled axe. The case was struck out by the District Court three months later.

8. Default judgment has been entered. That judgment has not been set aside. So the factual elements of the causes of action as pleaded and summarised above, and their legal consequences, are taken as proven (William Mel v Coleman Pakalia and Others (2005) SC790).

THE INJURIES

9. The plaintiff says he is permanently disabled because of the shooting. He cannot play sports he used to enjoy, eg soccer, volleyball, touch rugby and basketball. He cannot even climb trees.

10. These claims are corroborated by a recent report by Dr Alex Peawi, officer-in-charge of the Emergency Department at Modilon General Hospital. He confirmed that the plaintiff, on admission to the surgical ward, was treated for a compound or open fracture of the left distal fibula [the outer and thinner of the two bones of the lower leg, extending from the knee to the ankle]. Dr Peawi notes:

He was seen by me recently and the following was noted:

•	An ugly scar to the left lateral malleolus [the bony protuberances, one on each side of the ankle, at the lower end of the fibula and tibia respectively].

•	Constant pain.

•	Unsteady gait/walk.

•	X-ray reveals a fragment of pellet embedded inside the fibula causing reaction around the fibula.

Current risk:

•	Risk of re-fracture of fibula as it is a weight bearing bone.

•	The bone (fibula) is under strain from the foreign body and risk of fracture is high as well as damage to the ankle joint.

•	Requires adequate physiotherapy and analgesics or pain killers.

In view of the above he is awarded 20% loss of function and effective use of limb. 10% permanent loss of appearance including cosmetics, cost of analgesics and medical costs.

THE CLAIM

11. The plaintiff is claiming:

•	general damages, K25,000.00; and

•	compensation under Constitution, Sections 57 and 58, K10,000.00; and

•	damages for breach of the Arrest Act, K3,000.00; and

•	special damages, K204.00;

•	exemplary damages, K9,000.00; being

•	a total damages claim of K47,204.00, plus interest.

THE APPROACH TO ASSESSING DAMAGES

12. There are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. A breach of a human right or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action.

13. The first approach is demonstrated by cases such as David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Pawa Kombea v Semal Peke [1994] PNGLR 572.

14. In Kofowei, 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 in handcuffs. 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 identified the different causes of action involved and 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, which was merged with the claim for false imprisonment).

15. In Kombea the plaintiff 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. He 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. Kapi DCJ 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.

16. The alternative approach of awarding a global sum of damages is the one I took in Teine Molomb v The State (2005) N2861. The police arrested, detained and charged the plaintiff, a Western Highlands villager, with possession of stolen property (45 day-old chickens) and possession of unlicensed firearms and ammunition. He 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 obtained judgment against the State relying on malicious prosecution, negligence and breach of constitutional rights as causes of action. I held that 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.

17. In the present case the plaintiff’s counsel, Mr Akuani, has submitted that the court should take the first approach: compensation for breaches of human rights should be assessed separately from general damages (covering pain and suffering, loss of functionality of the plaintiff’s leg etc).

18. I agree, generally, that, in this case, that is the best approach to take. General damages should be assessed to compensate the plaintiff for the actual shooting injuries and their after-effects. Then a separate sum will be assessed, which will be compensation for the breaches of human rights that were committed by the police. Special damages and exemplary damages must be considered separately. As for the alleged breach of the Arrest Act, this aspect of the case has not been well articulated. In any event, the breach of the law that is alleged (not taking the plaintiff to a court without delay) is without substance: the plaintiff was taken to the police station on the Friday night, then to the District Court on Monday morning.

19. I will therefore assess damages in the following categories:

•	general damages;

•	compensation for breach of constitutional (human) rights;

•	special damages;

•	exemplary damages.

GENERAL DAMAGES

20. This is intended to compensate the plaintiff for the pain and suffering, inconvenience, partial loss of use of his leg and other losses that have to be endured by anyone who suffers this sort of injury. Makail AJ recently reviewed awards of general damages for these sorts of cases in Ngants Topo v The State (2008) N3478. The plaintiff suffered a 65% loss of function of a leg, following a bridge collapse. His Honour awarded him general damages of K30,000.00. In a recent Madang case, Milia Yongole Kuri v Walter Kapty & NHC, WS No 1775 of 2004, 20.02.08, I awarded K50,000.00 general damages to a woman who suffered a 45% loss of function of a leg after it was broken when she fell through the floor of her rented house, the incident being due to the negligent failure of the landlord to repair the property.

21. Here, the plaintiff’s injury is not as severe as in those cases and he should be awarded a lower amount. However, I think the court has to be careful that it does not treat cases such as the present as ‘not very serious’ in view of the relatively low percentage loss of functionality of the plaintiff’s leg. He has suffered a permanent injury, which interferes with his ability to partake in sporting activities. For any person, particularly a young man like him (he is now aged 20, doing a hospital management course at Divine Word University) this is a major setback in life. I will award K25,000.00.

COMPENSATION UNDER THE CONSTITUTION

22. A number of the plaintiff’s human rights were breached, viz

•	protection from inhuman treatment (Constitution, s 36);

•	right to the full protection of the law (Constitution, s 37(1));

•	right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, s 37(17));

23. The treatment meted out to the plaintiff was horrific. There was no good reason for him to be assaulted and shot. It might be argued that he should not have run away. He brought the problem upon himself by not co-operating with the police. If he had turned around and faced the police and put his hands up when they flashed the light on him he would be OK.

24. It is very easy to say that in hindsight. But the plaintiff has given evidence that he was scared. And I accept that evidence. That, unfortunately, is the reaction of many young men when they see the police. They do not trust them. They fear being bashed or shot, so they make a run for it. Here the plaintiff ran away, and he suffered as a result. Those who inflicted the suffering, and the State, which is responsible for their conduct, must be held accountable for what happened.

25. The plaintiff’s human rights were breached on four distinct occasions:

•	when he was shot the first time;

•	when he was shot the second time;

•	when he was assaulted;

•	when he was denied medical treatment, for 12 hours throughout Friday night and Saturday morning.

26. On each of those occasions, the three of his human rights outlined above were breached. I will allow K5, 000.00 for each occasion. The amount I award for breach of constitutional rights is K20, 000.00.

SPECIAL DAMAGES

27. The plaintiff claims just K204.00 for incidental medical expenses, which is a reasonable sum. I award K204.00.

EXEMPLARY DAMAGES

28. Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518 the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases, exemplary damages are not payable by the State. A plaintiff is expected to seek such redress from the individual police officers who breached the law.

29. The present case did not involve an unauthorised police operation. Individual police officers have been named as defendants. There had been an armed robbery and the police had mobilised and were searching for suspects. Breaches of the law were committed by police but within the scope of a proper police operation. The case falls more within the first category than the second. Therefore I consider that the circumstances of the case do not exclude the awarding of exemplary damages.

30. I must also consider Section 12(1) of the Claims By and Against the State Act 1996, which states:

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.

31. So the question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? In working that out, I remind myself that the decision whether to award exemplary damages is a matter of discretion. The purposes of an award of exemplary damages are to:

•	punish the defendant and vindicate the distinction between a wilful and an innocent act (Latham v Henry [1997] PNGLR 435, per Doherty J;

•	not unjustly enrich a plaintiff, but symbolise public indignation (Peter Kuriti v The State [1994] PNGLR 262).

32. I have also considered the view expressed by Judges in a number of cases that if exemplary damages are to be awarded for breaches of human rights by police officers, it is the individual police officers who should pay – not the State (eg Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, per Injia J).

33. In this case, default judgment has been entered only against the third defendant, the State. The first and second defendants, Constables Amburuapi and Kass, the officers who shot the plaintiff, cannot be held to account, through this judgment, for their individual actions. I do not think it would be just to deny the plaintiff exemplary damages for that reason.

34. I am satisfied that this is a case where the defendant – the State – has obviously failed in its duty to train and educate these police officers on proper and acceptable methods of policing. The State must be penalised for the wilful unconstitutional actions of its officers. An award of exemplary damages will symbolise the indignation, and disgust, of this Court and the People of Papua New Guinea about what the police did to the plaintiff.

35. The breach of constitutional rights was sufficiently severe, and continuous, to warrant an award of exemplary damages. I will award half the amount in exemplary damages as for breach of constitutional rights: K10, 000.00.

SUMMARY OF DAMAGES AWARDED

General damages = K25, 000.00

Compensation under the Constitution = K20, 000.00

Special damages = K204.00

Exemplary damages = K10, 000.00

Total damages = K55,204.00

INTEREST

36. In the statement of claim the plaintiff claimed interest. The relevant law is Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52, which states:

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.

37. 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.

38. 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 	The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest. The courts often apply a lower rate of interest for special damages in personal injury cases, for the reasons explained in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160. However, a human rights case is not a normal personal injury action and to keep the calculations simple, I will apply 8% to all heads of damage.

3 	Interest should be payable on the whole of the sum of damages for which judgment is given. Again, as this is a human rights case, I will not draw a distinction between pre-judgment and post-judgment components of the heads of damage.

4	I will fix the commencement date for the appropriate period as the date on which the causes of action accrued, 8 April 2005. The end of the period is the date of judgment, 27 January 2009. The appropriate period is 3.8 years.

39. 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.

Thus:

•	K55, 204.00 x 0.08 x 3.8 = K16, 782.00.

COSTS

40. 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

41. I direct entry of judgment in the following terms:

1)	damages, payable by the third defendant to the plaintiff, of K55,204.00;

2)	interest payable by the third defendant to the plaintiff, of K16,782.00;

3)	being a total judgment lump sum of K71,986.00;

4)	costs of the proceedings shall be paid by the third defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

_____________________________

William Akuani Lawyers: Lawyers for the plaintiff	
No representation for the defendants