N3791

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 903 OF 2003

BETWEEN

GRACE LOME by her next friend JACK LOME
Plaintiff

AND

ALLAN KUNDI, WESTERN HIGHLANDS PROVINCIAL POLICE COMMANDER
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail J,
2009: 17th June & 22nd September

DAMAGES - Negligence - Default judgment - Assessment of damages - Failure by police to arrest, charge and prosecute perpetrators - Rape of female victim - Minor - Independence and prosecution powers of police - Whether damages established - Remoteness of damages - Appropriate damages - Pain and suffering - Psychological distress or nervous shock - Awards - Constitution - Sections 196, 197 & 198.

Cases cited:

Helen Bia Sam -v- Paul Haurom & The State [1998] PNGLR 346; (1998) N1771
Samuel Era -v- Susan Paru [1994] PNGLR 593; (1994) N1237
The State -v- Kenneth Peter (2002) N2336
The State -v- Kunija Osake (2003) N2380
The State -v- Kaudik [1987] PNGLR 201
The State -v- Penias [1994] PNGLR 48
James Mora Meaoa -v- The State [1996] PNGLR 280
Mewari Patrick Paobi -v- PNG Electricity Commission & Anor (2002) N2511 
Susan Indupomaina -v- Talair [1981] PNGLR 559
Make Kawe -v- Thomas Kundip [1986] PNGLR 279
Kokonas Kandapak -v- The State [1980] PNGLR 573
Margaret Darvil -v- MVIT [1980] PNGLR 548; (1980) N259
Yapi Koka -v- MVIT [1995] PNGLR 249
Melinda Baduk -v- PNG [1993] PNGLR 250
Casswell -v- National Parks Board [1987] PNGLR 458
Lewis -v- The State [1980] PNGLR 219
Colbert -v- PNG [1988-89] PNGLR 590
George Kala -v- Joseph Kupo & The State (2009) N3677 
Toglai Apa & Bomai Siune & Ors -v- The Police & The State [1995] PNGLR 43
Alex Latham & Kathleen Latham -v- Henry Peni (1990) N1463
Abel Tomba -v- The State (1997) SC518
James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486

Counsel:

Mr D Gonol, for Plaintiff
No appearances for Defendants

JUDGMENT

22nd September, 2009

1. MAKAIL J: This is an ex-parte trial on assessment of damages, default judgment having been entered against the Defendants on 2nd March 2004. The cause of action itself is quite interesting and I suppose unique in a way because I do not think this Court has decided a case of this nature before. It questions the authority and independence of police prosecution of alleged suspects of criminal offences. That is, when to arrest and charge a person accused of committing a criminal offence and when not to do so. 

2. In this case, the Plaintiff, a minor, sues through her father for damages arising from negligence actions by members of the Police Force, in particular, the investigating officer for failing to arrest and charge two suspects for raping her and subsequently prosecuting them. She attacks the police for not diligently and professionally investigating the rape incident and bringing the perpetrators to justice. As the police had not diligently and professionally discharged the duty bestowed on them by the Constitution (sections 196, 197 and 198) and the Arrest Act 1977, the perpetrators were allowed to walk free and she was made to suffer as a victim of rape. Section 197(2) of the Constitution is relevant and reads:

"197. Functions of the Police Force.

(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament -

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

(2) Insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force." (Emphasis is added).

3. Having said that, it is also important to mention that, the Defendants had not filed a defence. As a result, default judgment was entered against them. This gives the Court no opportunity to determine whether the Plaintiff is entitled to question or challenge the authority of the police to arrest, charge and prosecute alleged offenders. Hence, what has been briefly discussed above becomes a mere academic exercise and as a matter of principle. It follows that, all that is required under the circumstances of this case now is for the Court to assess the damages that flow from the default judgment. Therefore, the primary issue is whether the Plaintiff has established her damages on the balance of probabilities.

4. The Plaintiff, her father and relatives who gave evidence to establish damages in the various Affidavits claimed that the Defendants failed to arrest and charge two persons allegedly involved in the commission of the offence when there was overwhelming evidence to support the charge against these two persons. The evidence are contained in the Affidavits of Jack Lome sworn on 26th July 2004 and filed on 10th August 2004 (Exhibit "P1"), Grace Lome sworn on 30th July 2004 and filed on 10th August 2004 (Exhibit "P2"), Korosen Lome sworn on 26th July 2004 and filed on 10th August 2004 (Exhibit "P3"), and Jennifer Nakandoe sworn on 26th July 2004 and filed on 10th August 2004 (Exhibit "P4"). 

5. From the uncontested evidence of the Plaintiff and her witnesses, I make the following finding of facts hereunder; at the material time, the Plaintiff, was a minor and was abducted and raped by two persons, whose identity were known at the time of the alleged rape on the evening of 15th February 2001.

6. The two suspects were identified by the Plaintiff and her relatives. They were Kepo Jimmy and Jacob Pil. On 16th February 2001, the father and the relatives of the Plaintiff made a citizen’s arrest on Kepo. They tied his hands and carried him to Mt Hagen Police Station where he was detained. The Plaintiff and witnesses gave their statements of how the rape incident took place to the police investigating officer to enable the police to arrest and charge him and thereafter, prosecute him. Instead, the police investigating officer released Kepo from custody without the Plaintiff, her father and relatives’ knowledge. When the Plaintiffs father found out of Kepo’s release, he returned to Mt Hagen Police Station and re-lodged his complaint against Kepo so that police could have him re-arrested. Nothing happened.

7. A year and half later (13th October 2002), the other suspect, Jacob Pil was seen in Mt Hagen town and the Plaintiffs father and relatives also made a citizen’s arrest on him. He was taken to Mt Hagen Police Station where he was detained. The Plaintiff and witnesses gave their statements of the rape incident to the police investigating officer to enable the police to arrest and charge him and thereafter, prosecute him. Instead, again, the police investigating officer released Jacob from custody without the Plaintiff, her father and relatives’ knowledge. When the Plaintiffs father found out of Jacob’s release, he also returned to Mt Hagen Police Station and re-lodged his complaint against Jacob so that police could have him re-arrested. Again, nothing happened.

8. The Plaintiffs father spoke to the First Defendant who was then the Provincial Police Commander of the Western Highlands Province so that he could direct his policemen to re-arrest Kepo and Jacob. Again, nothing happened. The Plaintiffs father wrote to the then Commissioner of Police, Mr Sam Inguba seeking his assistance but again, nothing happened. All that the Plaintiffs father wanted from the police is to have these two persons arrested, charged and prosecuted so that justice is done to the Plaintiff, him and family members.

9. The Plaintiff is one of seven children in the family. She was attending Mt Hagen primary school and was doing Grade 6 when she encountered the misfortune. After the rape incident, the Plaintiff showed signs of emotional and psychological stress. She was once a bright child but dropped in her academic grades. She is rest-less, and aggressive towards her parents and life generally. She did not make it to High School. Her parents have spent money on school fees to educate her and had expected her to make it to high school and further on, and eventually obtained a decent job, but all their efforts and expectations are now a vanity.

10. In terms of damages, the Plaintiff claims the following:

1. General damages;
2. Aggravated damages;
3. Special damages;
4. Exemplary damages;
5. Legal costs; and
6. 8% interest.

11. It ought to be restated here that, it is settle law in this jurisdiction that, where default judgment is entered against the Defendants, the Plaintiff still bears the onus of proving the damages. Bearing that in mind, I shall consider each head of damages hereunder:

General damages

12. This case, in my opinion, falls under the category of psychological distress or more appropriately, nervous shock, apart from the general pain and suffering from the physical assault by the two rapists. Thus, I shall consider an award of general damages in two parts. First, for physical pain and suffering, and secondly, for psychological distress or nervous shock. They are sometimes referred to as physical injury and mental injury.

13. Under the first part of general damages, I consider that the Plaintiff is entitled to damages for pain and suffering because there is undisputed or un-controverted evidence from the Plaintiff and her witnesses that she was abducted and raped by the two culprits. I accept that the Plaintiff was abducted by the culprits and taken to a secluded place where she was assaulted and raped. There is a Medical Report by Dr Peter Wi of Mt Hagen General Hospital dated 10th March 2001 marked as annexure "C" to the Affidavit of Jack Lome sworn on 26th July 2004 and filed on 10th August 2004 (Exhibit "P1"), stating that the Plaintiff sustained the following injuries when she was brought to the hospital for medical treatment on the night of 15th February 2001:

"On general examination, she was obviously depressed and in agony from pain arising from the perineum. She has also sustained a human bite on her right cheeks and a swollen left cheek, apparently from a slap.

Examination of the perineum revealed a traumatized external vaginal orifice. The labia and the vulva was obviously lacerated and the hymen torn. Blood and sticky serious fluid was seen oozing out of the vagina

High vaginal swaps showed spermatozoa present, but stain for Gram negative intracellular diplococci was negative.

It is thus to the best of my knowledge that, Grace was raped with penetration and ejaculation, in doing so, breaching her virginity. "

14. The Medical Report has been admitted into evidence uncontested, and is before me. It has not been refuted and I rely on it. I accept it as evidence of the doctor who examined the Plaintiff on the night of 15th February 2001. Based on the Medical Report, I find that, first the Plaintiff was sexually penetrated by the perpetrators against her will. Secondly, I find that she was assaulted on her right thigh and left cheek. That is, she was bitten on her right thigh and slapped on her left cheek. To my mind, the Medical Report describes a brutal case of rape of a young innocent girl. Not only that, but she has lost her virginity. As a result, she has suffered great pain and distress.

15. Despite the Medical Report and various Statements from the Plaintiff and witnesses Statements from the Plaintiff and witnesses, the police failed to arrest, charge and prosecute the two culprits. They allowed them to walk free. In this kind of case, what is an appropriate amount of damages arising from the failure of the police in arresting, charging and prosecuting the perpetrators of the offence? Should damages be awarded to the Plaintiff for just the police’s failure to bring the perpetrators to justice or should damages be awarded to her for the pain and suffering she underwent at the time of being raped and thereafter when recovering? 

16. I am of the view that, she must be compensated for the pain and suffering she had undergone at that time and thereafter, before full recovery after receiving treatment. I am also of the view that, the damages she seeks from the Defendants is not too remote to the cause because I find the actions of the police in not arresting, charging and prosecuting the perpetrators of the offence has indirectly contributed to the Plaintiffs loss, although I accept that it is not the members of the police force who raped her as was the case in Helen Bia Sam -v- Paul Haurom & The State [1998] PNGLR 346; (1998) N1771, which I will refer to shortly below. 

17. Some reference to past cases is necessary to assist in assessing a reasonable amount of damages for pain and suffering. The first case is Helen Bia Sam (supra). In that case, the Plaintiff sued the Defendants, the First Defendant, being a policeman, for damages for assault, unlawful arrest, false imprisonment and breaches of constitutional rights. The First Defendant went to the Plaintiffs house in search of a suspect. He entered the house while she was asleep with her husband and father.

18. He assaulted and threatened the Plaintiff and forcefully took her and her father Bia Maini in a police vehicle to Goilala Settlement. The Plaintiffs father was left at the settlement and the First Defendant took her in the same police vehicle back to the family house where the First defendant threw all their belongings every where on the floor. The Plaintiff was later taken to the police station at 14 mile. She was not charged with any offence at the station.

19. At the station, she was subjected to abuse and the First Defendant had sexual intercourse against her will twice. She was threatened with gun. She was later taken to the cell and detained there without laying any charges and also without any food until the following day when a member of CID released her without any charges.

20. In assessing an appropriate amount of damages for pain and suffering for assault, Kapi DCJ (as he then was), accepted the evidence of the Plaintiff of the physical assault on her by the use of the butt of the rifle and threat of gun at the station. But His Honour found that there was no evidence of the extent of any injuries received by the Plaintiff at the time although there was evidence from the Plaintiff that she was examined by a doctor. However, neither the doctor was called nor any medical report of the injuries was tendered. Therefore, there was no evidence of any physical injury or the extent of any psychological or mental injury caused to the Plaintiff. His Honour however, accepted her evidence that the experience has caused her much fear and she lived in fear of the police. All in all, His Honour awarded damages of K1,000.00.

21. The second case is Samuel Era -v- Susan Paru [1994] PNGLR 593; (1994) N1237, where Woods J, dismissed an appeal from the decision of the Mt Hagen District Court in awarding K1,600.00 to the Respondent on the complaint of the Respondent for damages to "the person and character of the person". In that case, the Respondent, alleged that the Appellant had had an affair with her and, as a result, she became pregnant.

22. The Appellant had pressured her to come with him and had promised to marry her. She went with him and had sexual intercourse with him. Following the sexual intercourse, she became pregnant. She claimed that she did that because of his promises to make her his wife and that he refused to honour that promise. She, therefore, suffered damages to her status in society and lost her virginity to him. This demeaned her in the eyes of the community, and she would have more trouble getting married. The Appellant appealed the decision of the District Court on the ground that there was no cause of action known to law for such a claim. 

23. In dismissing the appeal as having no merit, this is what His Honour said when commenting on the basis of the cause of action:

"But the case before me now is simply a personal action for damages to the complainant by way of injury to her virginity and, thus, to her status as an unmarried woman. I think it must be clearly accepted that it would be common knowledge that a future bride is more valuable and has greater respect if she has not had an affair or children by someone else before her marriage, so why should there not be a cause of action, namely, personal injury to her status by the loss of her virginity? Of course, it is clear that under the District Courts Act, the District Court has no jurisdiction in cases of breach of promise to marry; but this is not taken as a breach of promise to marry. The respondent was not seeking damages for missing out on the marriage. She was seeking damages for personal injuries to herself."

24. It is noted, when His Honour dismissed the appeal, the award of K1,600.00 by the District Court remained the award of the District Court.

25. Thirdly, in the criminal case of The State -v- Kenneth Peter (2002) N2336, where the accused was convicted on his guilty plea of carnal knowledge of a girl under the age of 16 and offered to pay compensation of K5,000.00 to the victim as part of mitigation of penalty, Injia J, (as he then was) referred to the case of Samuel Era (supra) and made these observations in respect of the impact of such crimes on young girls which I respectfully adopt here:

"I am also aware that the amount of compensation offered by the prisoner is the maximum amount allowed by the Criminal Law (Compensation) Act 1991. There is no evidence before me as to any local custom on assessment of quantum of compensation for this kind of wrong. But I would think the invasion of an underage girl’s most intimate parts of her body by a person in a position of trust, and the resultant loss of a girl’s virginity, the trauma and pain she was subjected to at the time of the offence, the damage to her reputation and the shame and embarrassment she will no doubt bear in the future, are things for which substantial compensation is payable in local customary societies in this country. 

In arriving at the exact figure, some assistance may be gained from the decision of Woods J. in Samuel Era v. Susan Paru [1994] PNGLR 598. In that case, Woods J. dismissed an appeal against a District court decision awarding K1,600.00 in a case where the relationships between two consenting adults resulted in pregnancy of the woman. She submitted herself to the man after he promised to marry her but he later deserted her. In the present case, this case involves an underage girl who was deprived of her virginity by a man known to her in breach of trust and her consent to sex was obtained by trickery or fraud. In these circumstances, I do not think the sum of K5,000.00 offered by the accused is unreasonable." (Emphasis is added).

26. As noted, His Honour approved K5,000.00 as compensation to the victim.

27. Except for the award of K1,000.00 in Helen Bia Sam’s case (supra), the awards of K1,600.00 in Samuel Era’s case (supra) and K5,000.00 in Kenneth Peter’s case (supra), were awarded after the Court took into account the impact of rape on the victims like the loss of virginity and the invasion of privacy of a person’s body by the perpetrators. I think I can draw some comparison and analogy from them in assessing an appropriate amount of damages for the Plaintiff for pain and suffering arising from the rape incident. 

28. And so I take these matters I mentioned above into account in this case in my assessment. I also take into account the age of the Plaintiff which was 11, at the time of the incident. To my mind, she was a minor at that time and this makes this case more serious than the others I have mentioned above. Further, I take into account that she was abducted and raped. This shows that it was not a consensual sexual act like Samuel Era’s case (supra), thus, the case calls for a higher award of damages. For all these reasons, I consider that a reasonable amount to award as damages for pain and suffering in the circumstances of this case is K10,000.00 and I so award.

29. In respect of the second part of general damages which is, the psychological stress or nervous shock suffered by the Plaintiff, I have not found any case authority directly related to the mental state of a rape victim and the amount awarded as damages. However, some guidance can be sought from criminal cases decided in this jurisdiction in respect of rape cases. In The State -v- Kunija Osake (2003) N2380, in sentencing the prisoner to 18 years imprisonment for raping an 11 year-old female victim, late Jalina J, said that rape is a very serious crime and attracts the maximum penalty of life imprisonment under section 347 of the Criminal Code. His Honour said that the Courts have in past cases sought to bring to the attention of the public, particularly men, to getting them to appreciate what rape entails including its antecedent traumatic consequences on the victim as a human being who deserves to be respected.

30. There is no doubt in my mind that both National and Supreme Courts have said that rape is a very serious crime. This is because it is crime committed against the women folks of our communities. Some of the judges have expressed their views in their own ways on the occasion of sentencing persons convicted of rape and I take the liberty to mention a few of them. First, in The State -v- Kaudik [1987] PNGLR 201, Amet J, (as he then was) referred to the following excerpt from the paper by the Advisory Committee on Sexual Offences: 

"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the woman’s continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value."

31. Secondly, in The State -v- Penias [1994] PNGLR 48, Injia J (as he then was) said:

"Rape constitutes an invasion of the most intimate part of a women’s body. Women become objects of sex, and sex alone, to men like the prisoner who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel or in groups, in any place they choose to be at any time of the day. At times, because of their genders, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of pervasive conduct of men like the prisoner. 

Our women in the small communities, in the villages and remote islands, in small towns and centres, who once enjoyed freedom and tranquillity, are living under fear and feel restricted. That is why the Supreme Court in Aubuku’s case said that people who commit rape must be punished with a strong punitive sentence."

32. Thirdly, in James Mora Meaoa -v- The State [1996] PNGLR 280, the Supreme Court said:

"We also agree with the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person, young or old, who happens to be by, be they on public road, in the gardens or as here on the coast. We agree that the right of all persons, female as well as male not to be assaulted must be clearly stated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all female population regardless of age or background." 

33. The various judges’ concerns expressed in the above cited cases were made in criminal proceedings but I believe the underlying factor is that, the criminal laws of this country seeks to protect our women folks from such crimes and it is important that the Court must be seen to give effect to the criminal laws so that justice is done to the victims. In a case where a victim of rape seeks damages, it is my considered opinion that the victim must be compensated in some form of monetary damages not as to make full restitution but to at least, compensate her for the trauma and mental anguish. I qualify what I have said, because money will not completely heal the pain and trauma of such a terrible experience.

34. In so far as civil cases are concerned, the nearest one I was able to find is Mewari Patrick Paobi -v- PNG Electricity Commission & Anor (2002) N2511. In that case, the Plaintiff, a student at Bugandi High School and a fellow student were electrocuted at the school premises one afternoon on 02nd September 1994 when they stepped on a shallow pool of rain water, which was contaminated by electrical current from live wire which had fallen down from a large rain tree. His friend was killed instantly while he was pulled out of the pool of water as he laid in shock. They were taken to the hospital on the same day where the Plaintiff received medial treatment. Between 02nd September 1994 and 04th March 1999, the Plaintiff underwent various medical and psychiatric examinations. He sued the Defendants for damages for nervous shock caused by the electrocution. He claimed K50,000.00 for general damages. 

35. The matter proceeded to trial on assessment of damages following an entry of default judgment. Injia DCJ, (as the then was) when considering how much to award as general damages for nervous shock gave an in-dept exposition of the law in relation to when a claim for damages for nervous shock may arise and how the Court should assess damages which, I consider useful in this case, and respectfully adopt the relevant parts of his discussions hereunder:

"Physical Injury: Nervous Shock

There are two types of injury for which the plaintiff is entitled to be compensated by way of general damages. First, nervous and mental shock. Nervous and mental shock is a form of physical injury, which is often medically inexplicable. Nervous shock may be sustained directly or indirectly. It is direct when a person is exposed to some unexpected violent event. In law, there is no question on the compensable nature of this kind of nervous shock. But I must bear in mind the fact that when the plaintiff was examined at the outpatient clinic and discharged without any medical attention or treatment suggests that the initial shock may not have been serious as it did not immediately medically manifest itself. 

 It is indirect when the person is not directly affected by the violent event but merely witnesses to a violent situation such as a person watching a fatal accident or a man fall from a tree or home. This kind of nervous shock is also compensable but it is subject to principles of causation or remoteness of damage.

In the present case, the plaintiff suffered nervous shock both direct and indirect sources. He suffered nervous shock from his own electrocution. He also suffered nervous shock with his "near death experience upon seeing the instant death of his friend." He is entitled to recover damages for both kinds of nervous shock. He is entitled to general damages for the initial nervous shock and trauma, unconsciousness and associated pain, suffering and discomfort. This relief is provided for at common law, as nullified by s.36 of the Wrongs Act (Ch. No. 297) which provides:

"Mental or nervous shock 

- In an action for injury the person, the plaintiff is not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock."

Non-physical injury: Psycological injury

 The second kind of injury is the psychological or psychiatric injury resulting from nervous or mental shock. Early common law cases restricted recoverable damages for psychological or psychiatric injury to cases of "recognizable psychiatric illness or injury" which were associated with physical injury and which were medically sustainable. These cases attempted to distinguish between "recognizable psychiatric" illness/injury which was compensable and mental / emotional) stress which was not recoverable in damages: Hinz v Berry [1970] 2 QB 40 at 42 - 43; per Lord Denning. But modern cases expanded the categories of "psychiatric" damage to include the latter category: see Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. 

 In PNG, the common law has been modified by s.36 of the Wrongs Act reflects the modern common law position. This section is widely worded to allow award of damages for psychological injury arising from nervous shock of the kind described by Dr Andrew in his report. Damages however must be properly assessed in accordance with established principles and practices including principles on causation or remoteness of damage. The difficulty however with this second category of injury is one of assessment of damages. It is practically difficult to assess damages for this kind of injury. As Sir Gordon Wilmer in Hinz v Berry said in Hinz v Berry at p. 46:

"It is practically impossible to find any signposts on the road; there is no tariff or pattern of awards in this class of case; and this makes it difficult for any one judge to criticize another’s estimate of what the damages ought to be."

The learned authors in the Text Book by Nicholas Mullany and Peter Haneford in Tort Liability for Psychiatric Damage - the Law of Nervous Shock, (Sweet and Maxwell, Sydney 1993) at p.263 - 264:

"Determination of reasonable compensation for psychiatric damage presents the ultimate nightmare for the judicial mind, especially where it is unaccompanied by physical impact on the patient’s body … of all the aspects of psychiatric damage law this is the one which we know least about. No clues can be gleaned from the oldest authorities given the reliance on jury assessment. There is no thread linking the more modern cases, no commonality between awards, no discernable process of damages calculation capable of extrapolation. All too often the question of damages for psychiatric harm is dealt with in a sentence or two with no indication given as to the reasoning which led to the figures decided on. Guesswork, unfortunately are not uncommon means by which sums are arrived at under various heads of compensable loss in the personal injuries sphere is the primary tool at the court’s disposal in psychiatric damage cases."

 As to the proper approach to awarding damages for psychological or psychiatric injury, I prefer to adopt the approach taken by Andrew, J in Susanna Undapomaina v Talair Pty Ltd [1981] PNGLR 557 at page 563 where His Honour held that assessment of damages for nervous shock and psychological injury rarely appears as a separate and particular award; but it is compensable in general damages as part of pain, suffering and loss of amenities of life."

36. His Honour took into account past awards for general damages in the cases like Susan Undaipmaina -v- Talair [1981] PNGLR 559, Make Kawe -v- Thomas Kundip [1986] PNGLR 279, Kokonas Kandapak -v- The State [1980] PNGLR 573, Margaret Darvil -v- MVIT [1980] PNGLR 548; (1980) N259, Yapi Koka -v- MVIT [1995] PNGLR 249, Melinda Baduk -v- PNG [1993] PNGLR 250 and Casswell -v- National Parks Board [1987] PNGLR 458 where general damages ranged from K9,000.00 - K22,000.00. 

37. I note His Honour found that Plaintiff suffered nervous shock, the nature and extent of which initially did not manifest in any physical decapacitating effect and which was not supported by any medical evidence. The resulting post-traumatic stress which gave rise to emotional, psychological and intellectual impairment also was not supported by some medical evidence although Brother Andrew had given evidence to support the claim.

38. His Honour also made allowance for the possibility of other intervening factors in life such as other illnesses and stressful situations in life in the family or at school, which may have contributed to or aggravated the disabilities. In these circumstances, His Honour awarded K20,000.00 to compensate the Plaintiff for past and future pain, suffering, loss of amenities and enjoyment of life.

39. The next case is that of Lewis -v- The State [1980] PNGLR 219. It is an example of serious head injury case where the Plaintiff was awarded K125,000.00 in general damages, resulting in psychological and personality disorder and progressive memory loss resulted from serious brain damage from head injuries and last of a serious head injury case is that of Colbert -v- PNG [1988-89] PNGLR 590 where the Plaintiff suffered psychological disability, memory loss and diminished intellect from a fractured skull and brain injury and was awarded K70,000.00 in general damages.

40. Finally, I note that in Mewari Patrick Paobi’s case (supra), there were various medical reports presented to the Court including Br Andrew’s oral evidence. In the present case, there is neither a Medical Report nor a doctor or psychiatrist called to give evidence of any psychological stress or nervous shock suffered by the Plaintiff. Nonetheless, I am prepared to find that the Plaintiff has suffered some psychological stress or nervous shock as a result of being raped. 

41. I find that to be so because the Plaintiff has given evidence that, "[I]will never forget that day. I nearly got killed in the hands of Jacob and Jimi. I am now very scared seeing men. I can’t really walk around myself. I see boys in school, I develop an hatred feeling against them. Why should such a thing happen to me? I also feel very ashamed when my schoolmates tease me of I being raped. It is a very painful thing to me."

42. To what extent is the psychological stress or nervous shock, I am unable to say because there is no independent psychiatric report from a psychiatrist to give the extent of the Plaintiffs mental state after the rape incident. The only evidence before me is that of the father of the Plaintiff who says that the Plaintiff is aggressive at times and her academic performance at school had dropped, resulting in her not continuing to high school.

43. This means that the amount of damages I would award in this case would not be higher as in a case where, there is evidence of a psychiatrist or psychiatric report stating the extent of the mental injury of the Plaintiff. I emphasize here that, if there is evidence from a psychiatrist or a psychiatric report, I would have no hesitation to award a higher amount of damages. In the absence of such evidence, I will have to award a much lesser amount.

44. Bearing in mind the award of K20,000.00 in Mewari Patrick Paobi’s case (supra) which was based on proper medical evidence of the extent of the psychological stress or nervous shock of the Plaintiff, I will award K10,000.00 in this case.

Aggravated damages

45. Secondly, the Plaintiff claims aggravated damages. I said in one of my recently delivered judgment on assessment of damages on 05th June 2009 in George Kala -v- Joseph Kupo & The State (2009) N3677, a case of police assault and brutality, at pp 7-8 that:

"Aggravated damages are awarded in addition to general damages. They are awarded in cases where the circumstances of the attack on the Plaintiff are very serious and uncalled for.

In the text book, The Law of Torts, Law Book Co (9th ed 1998), Professor John G Fleming sets out neatly how aggravated damages are awarded in cases of battery at pp 29 -30 as follows, "Of the various forms of trespass to the person, the most common is the tort known as battery, which is committed by intentionally brining about a harmful or offensive contact with another person’s body. The action, therefore serves the dual purpose of affording protection to the individual no only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity. The insult in being touched without the consent has been traditionally regarded as sufficient, even though the contact is only trivial and not attended with actual physical harm. The least touching of another in anger is a battery and so is such offensive and insulting behaviour as spitting in another person’s face, cutting his hair or kissing a woman. The element of personal indignity is given additional recognition by awarding aggravated or even punitive damages to compensate for any outrage to the plaintiffs feelings." (Underlining is mine).

Therefore, I have no hesitation to find that the Plaintiff is entitled to be compensated for the loss of his dignity and pride by way of aggravated damages." 

46. The first question then is; has the Plaintiff established her claim for aggravated damages and if so, the second question is; what would be a reasonable award for aggravated damages in this case? In George Kala’s case (supra), I referred to first, the case of Toglai Apa & Bomai Siune & Ors -v- The Police & The State [1995] PNGLR 43, where Sheehan J, made a global award of general and aggravated damages of K224,000.00 in a case where there were about, 112 Plaintiffs for an unlawful police raid in Yuwai village at the outskirts of Kundiawa town in August 1990 and secondly, in the case of Alex Latham & Kathleen Latham -v- Henry Peni (1990) N1463 where Doherty J, awarded K5,000.00 for aggravated damages. I also awarded K5,000.00 for aggravated damages in George Kala’s case (supra).

47. In the present case, I am satisfied that aggravated damages should be awarded because first, the actions of the Defendants have left the Plaintiff with no sense of real justice as a victim of rape and secondly, she has been ridiculed and teased by her school friends as a rape victim at the time. She has lost dignity and pride. See paragraph 11 of her Affidavit (Exhibit "P2"). In the circumstances, I consider K5,000.00 also reasonable and award it.

Special damages

48. The Plaintiff also claims special damages. There is no submission in respect of this head of damages by counsel for the Plaintiff. Nonetheless, it has been claimed by the Plaintiff and I shall consider it. Has the Plaintiff established this head of damages? I find no evidence to show that the Plaintiff has incurred costs like receipts of payment for medical bills, transport costs, etc. I award nothing under this head of damages.

Exemplary damages

49. I make no award for exemplary damages because the Plaintiff has not named the individual police officers responsible for messing up the investigations of the rape incident in the action so as to hold them personally liable for exemplary damages. See Abel Tomba -v- The State (1997) SC 518 and James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486.

8% Interest

50. Finally, the Plaintiff claims interest on damages pursuant to section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act 1962. Under section 1 of the above Act, interest maybe awarded at a rate of up to 8% per annum on either the whole or part of the debt or damages for the whole of the period between the date on which the cause of action arose and the date of judgment or on the whole or part of the debt or damages for the part of the period between the date on which the cause of action arose and the date of judgment.

51. In the present case, I am inclined to award interest at the maximum rate of 8% on the whole of the damages for part of the period between the dates on which the cause of action arose and judgment. That is, from the date of the issue of the Writ of Summons of 18th June 2003 to the date of judgment of 22nd September 2009. The reason for doing that is because there has been a long delay in bringing this matter to an end and I think the Plaintiff ought to be fairly compensated for missing out all this time.

52. Proceeding on this premise, I calculate 8% interest as follows:

* From 18th June 2003 to 22nd September 2009 is a total of 2,282  days.

* 8 % of the total judgment sum of K25,000.00 per annum, (General damages and Aggravated damages) is K2,000.00.

* K2,000.00 divided by 365 days in a year is K5.48 per day.

* K5.48 per day multiplied by 2,282 days is K12,505.36.

53. I award K12,505.36 as 8% interest.

54. In summary, I award the following:

1. General damages for pain, suffering and loss of amenities	- K20,000.00	
2. Aggravated damages	- K 5,000.00	
3. Special damages	- Nil	
4. Exemplary damages	- Nil	
5. 8% interest	- K12,505.36	
		
Total	K37,505.36	

55. There shall be a judgment for the Plaintiff in the total sum of K37,505.36 with costs of the action to be taxed if not agreed. 

The time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.

_________________________________________

Paulus Dowa Lawyers: Lawyers for the Plaintiff 
Acting Solicitor-General: Lawyers for the Defendants