Kala v Kupo [2009] PGNC 78; N3677 (19 June 2009)

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TORT - Trespass - Police assault and battery - Liability and assessment of damages - No evidence to refute allegations of assault and battery - Policemen acting in the course of their duties - Liability established.

DAMAGES - Injuries to face, right forearm and body - Verbal abuse and threats issued - Refusal of request for medical treatment - No permanent disabilities - Award of K5,000.00 as general damages for pain and suffering - Award of aggravated damages of K5,000.00 warranted - Award of K2,800.00 as economic loss.

PLEADINGS - No pleadings to support claim for other heads of damages - Malicious prosecution - Defamation of character - Special damages - Exemplary damages - No awards made.

Alex Latham & Kathleen Latham -v- Henry Peni (1990) N1463
Toglai Apa & Bomai Siune & Ors -v- The Police & The State [1995] PNGLR 43
Pawa Kombea -v- Semal Peke [1994] PNGLR 572
Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214
Abel Tomba -v- The State (1997) SC518
Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247
Demba Kalo -v- Cornnie Akaya & The State (2007) N3213
James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486

1. MAKAIL J: This matter proceeded as an ex parte trial on liability and assessment of damages at 9:30 am on 15th June 2009 even though I was informed by Mr. Dowa of counsel for the Plaintiff at the commencement of the trial that the Defendants were represented by lawyers from the Solicitor General’s office and would be attending that morning to defend the matter.

2. As there was no appearance by lawyers from that office and as time is a precious "commodity" at this day and age, I granted leave to the Plaintiff to proceed ex parte pursuant to his application, and proceeded to receive evidence from him which comprised of his Affidavit sworn on 1st September 2008 and filed on 8th September 2008 (Exhibit "P1"). The Plaintiff also gave brief oral evidence to reaffirm what he had already stated in his Affidavit and also to tell the Court that he has been a PMV driver for about 30 years now. He also said that the two traffic charges of dangerous driving and overloading of passengers laid against him by the police had been dismissed by the Mt Hagen District Court for want of prosecution. Finally, he denied committing these two offences or any wrong doing to warrant such retribution from the policemen that day.

3. After close of the Plaintiff’s case and as there was no representation by the Defendants to present their case, I directed the Plaintiff to file written submissions on the question of liability and also assessment of damages by or before close of business on 16th June 2009 and reserved my decision until 19th June 2009. This is my decision.

4. In the Writ of Summons filed on 4th December 2001, the Plaintiff seeks general damages, aggravated damages, economic loss, 8% interest and legal costs against the Defendants for trespass. I have specifically listed these various heads of damages above because they will become relevant later on in the assessment of damages in the event that I find the Defendants liable in this case.

5. From the Affidavit of the Plaintiff (Exhibit "P1"), the facts are pretty much straight forward. The Plaintiff was aged 36 at the time he issued this proceeding against the Defendants, but at the date of trial, he is about 43 years old. At the material time, he was a PMV driver and on the relevant date of 21st December 1999, he was driving a PMV truck, a Mitsubishi truck, Registration No P-966 with passengers in it from Togoba to Mt Hagen town when he was intercepted by a police vehicle at Keltiga Primary School.

6. There were policemen in the police vehicle driven by Simon Kik. They accused him of driving dangerously and overloading passengers. They demanded his drivers licence and he produced it to them. They then ordered him out of the motor vehicle and onto the police vehicle. When he got inside the police vehicle, they assaulted him. They struck him on his face and ears several times with their hands. They also gun butted him with a M16 gun. They also struck him several times on his forearm with a wheel spanner. They also swore at him saying "Kan sting". They even threatened to kill him by telling him, "Bai mipela kilim yu, nogat, yu stap isi". He received a swollen face and eyes including loosing a lot of blood.

7. They drove him to Mt Hagen Police Station. His PMV truck was driven by one of the policemen to the Police Station. At the Police Station, his passengers saw his injuries as he was taken into the Police Station. The policemen again assaulted him. They also beat up the passengers. The Plaintiff was thrown into the cell and locked up. He was refused medical treatment. He was also charged by the police with two traffic offences of overloading and dangerous driving but these charges were struck out for want of prosecution by the District Court. He denies committing these offences or any wrong doing to warrant such retribution from the policemen.

8. As a result of the repeated assaults, he lost a lot of blood and suffered the following injuries:

9. These injuries were confirmed by Dr Peter Bamul of the Mt Hagen General Hospital in his Medical Report dated 03rd January 2000 where the Plaintiff sought medical treatment. See Annexure "A" of the Affidavit of the Plaintiff (Exhibit "P1"). The report states the type of injuries suffered by the Plaintiff as follows:

"Clinical Findings: (Diagnosis):	1. Massive Bilateral Periorbital Haemotoma.
	2. Massive swelling of the face.
	3. Soft tissue injury to the trunk
	4. Right Forearm – Posterior aspect dirty wound by blunt object.
	5. Soft tissue injury to right ear
Comments:	Extensive injury to the body caused by blunt object. The injuries will take some time to heal".

10. In my view, the injuries described by Dr Bamul are consistent with the two photographs of the Plaintiff’s injuries. See Annexure "B" of the Affidavit of the Plaintiff (Exhibit "P1"). Looking at these two photographs, I can see that the Plaintiff suffered injuries to his face and right forearm. One of the photographs shows the Plaintiff nursing his right forearm, wrapped in white bandage. Further, the injuries described by Dr Bamul are also consistent with the evidence of the Plaintiff that he was hit with a wheel spanner and gun butted on his right forearm and body. Fortunately though, he suffered no permanent disabilities although it took a while for him to fully recover from the injuries. But in my view, they are still serious injuries.

11. All the above evidence describes a typical case of police assault and battery. They also describe a case of brutality and use of excessive force against an innocent and defence-less man. Although the Defendants had filed a defence on 29th April 2002 denying any assault of the Plaintiff by policemen even though they admitted that the Plaintiff and his PMV truck were intercepted along the Okuk highway, after the Plaintiff almost ran into the police vehicle between Togoba and Keltiga, there was neither an appearance by the Defendants nor their lawyers at the trial to lead evidence to establish that defence. Hence, in the absence of evidence denying the assault and battery of the Plaintiff, I am satisfied on the balance of probabilities that the policemen assaulted and battered the Plaintiff in the police vehicle at Keltiga and also at the Mt Hagen Police Station on 21st December 1999. I am also satisfied that the Plaintiff was detained and refused medical treatment for the injuries sustained. I am further satisfied that there was no justification by the policemen to assault and detain the Plaintiff.

12. It is also clear from the evidence of the Plaintiff that he was intercepted by the policemen along the road for allegedly driving dangerously and overloading. It is also clear that the Plaintiff was brought to Mt Hagen Police Station were he was arrested and charged. To my mind, these events sufficiently establish that the policemen were acting in the course of their duties that day when they stopped the Plaintiff at Keltiga Primary School. Therefore, I am satisfied that the policemen were acting in the course of their duties when they assaulted and battered the Plaintiff. In the circumstances, I hold the Defendants liable for the injuries sustained by the Plaintiff as a result of the actions of the policemen that day.

13. Having held the Defendants liable for the injuries sustained by the Plaintiff, the next issue I have to determine is the amount of damages I should award to the Plaintiff as restitution.

14. The first head of damages the Plaintiff claims is general damages for the pain and suffering. In Demba Kalo -v- Cornnie Akaya & The State (2007) N3213, Her Honour Davani J, awarded K5, 000.00 as damages to the Plaintiff as a result of being assaulted by policemen and suffered bruises to his face and body. Her Honour also awarded K20, 000.00 as general damages for loss of 35 % efficient loss of use of both eyes.

15. I am satisfied that the injuries suffered by the Plaintiff in this case are similar to the injuries suffered by the Plaintiff in Demba Kalo’s case (supra), especially the bruises to the face and right forearm. Therefore, I see nothing wrong in awarding K5, 000.00 to the Plaintiff in this case. Apart from that reason, I think in order to maintain some consistency and uniformity in general damages awards in police assault and battery cases where injuries maybe similar or same, Courts should follow awards in past cases. The Demba Kalo’s case (supra) is one and I add the present case to the list of such cases. I award K5, 000.00.

16. Secondly, the Plaintiff claims aggravated damages. 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.

17. 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 bringing about a harmful or offensive contact with another person’s body. The action, therefore serves the dual purpose of affording protection to the individual not 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 plaintiff’s feelings." (Underlining is mine).

18. In this case, quite apart from the assaults and battering of the Plaintiff, I accept that the Plaintiff was verbally abused by the policemen. They swore at him by saying "Kan sting". They even threatened to kill him by telling him, "Bai mipela kilim yu, nogat, yu stap isi". The Plaintiff is a human being and not an "animal" and does not deserve this kind of treatment from the policemen. Every now and then, we see on Television or read in the newspapers of cases of police assault and battery of innocent people, including use of highly offensive and derogatory words. To my mind, these words used by the policemen are highly offensive and derogatory. They are a direct invasion of the Plaintiff’s dignity and pride that should be visited by an award of aggravated damages.

19. Further, I find this case aggravated by the denial of the Plaintiff’s request for medical treatment by the policemen at the Mt Hagen Police Station. I have no doubt in my mind that the Plaintiff was severely beaten by the policemen and was seriously injured and had needed urgent medical treatment at that time. Yet, the policemen did nothing. Worst still, they refused his request for medical treatment. The presence of this aggravating factor warrants an award of aggravated damages.

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. The question then is, what would be a reasonable award for aggravated damages in this case? In the Toglai Apa & Bomai Siune & Ors -v- The Police & The State [1995] PNGLR 43, His Honour Sheehan J, made a global award of general and aggravated damages of K224,000.00 in a case of about, 112 Plaintiffs against the Police and the State for an unlawful police raid in Yuwai village at the outskirts of Kundiawa town in August 1990. His Honour did not award a fix amount for aggravated damages but said that:

"I am, however, satisfied that there should be an award for general and even aggravated damages in this case. Loss, and shock of loss, of home and shelter must be compensated. But damages, even awarded for such breaches of fundamental rights, must nonetheless come within the rationale of damages, that is, a compensation for an actual loss, actual inconvenience, or actual injury. In tort, damages by way of compensation are at large, that is to say, open ended, since all possible heads of damage may not be directly measurable is actual material loss. But keeping the principle of compensation to the fore, the court can, as well as awarding a general sum by way of damages for the measurable losses, also make an award taking into account:

"the defendant’s motives, conduct and manner of committing the tort, and, where these have aggravated the plaintiff’s damage by injuring his proper feelings of dignity and pride, aggravated damages may be awarded ... Aggravated damages are designed to compensate ... they must be distinguished from exemplary damages which are punitive ...." Halsbury’s Laws of England (4th edn) vol 12 para 1189.

It is not easy to quantify in money terms the loss of home and shelter either, and the suffering, shock, and insult to the dignity of an ordinary citizen. But taking all these matters into account, I consider in this case a global figure of K224,000 for all damages is a substantial sum, adequate and fair in the circumstances. It equates to K2,000 per plaintiff". (Underlining is mine).

20. In Alex Latham & Kathleen Latham -v- Henry Peni (1990) N1463, Her Honour Doherty J, (as she then was) awarded K9,000.00 to each Plaintiff as aggravated damages. In that case, the Plaintiffs were travelling together with their infant child on 12th May 1995 by Air Niugini from Singapore to Port Moresby in the economy class cabin. They had occupied the front or "bulkhead" seats where there was a device in front of these front seats which enables an infant’s cradle to be latched into position.

21. At 5.30 am both Plaintiffs were asleep when they were rudely awoken by an alcohol being thrown over them. They saw the Defendant who they had never met before. He started shouting abuse and obscenities at both of them and then hit the Plaintiff Alex Latham on the face causing a cut to the mouth and assaulted the Plaintiff Kathleen Latham on the face causing bruising to her nose. He also threatened to throw the baby out of the aircraft. Each Plaintiff required medical attention but suffered no residual disability. The experience so unnerved them, they left Papua New Guinea for good.

22. In the present case, I am inclined to awarding K5,000.00 as aggravated damages to the Plaintiff. That amount is K4,000.00 less the amount awarded to each of the Plaintiffs in Alex & Kathleen Latham’s case (supra). I am awarding this amount because I am of the opinion that first, the verbal abuse and assault of the Plaintiffs in Alex & Kathleen Latham’s case (supra) occurred in an aero plane during an international flight between Singapore and Papua New Guinea (Port Moresby) where our "international neighbours and friends" witnessed the unpleasant and humiliating experience of the Plaintiffs and secondly, that the Plaintiffs eventually left the country for good after the incident.

23. In the present case, the assaults and verbal abuses occurred along the Okuk highway and at the Mt Hagen Police Station where our "international neighbours and friends" were not close by to witness them. At least, the Plaintiff was saved this embarrassment, although I take into account that his passengers had witnessed his unpleasant and humiliating experience. Secondly, the Plaintiff has not fled the country. He is still around as this is his home. For these reasons I award K5,000.00 under this head of damages.

24. Thirdly, the Plaintiff seeks damages for malicious prosecution. In the written submissions, Mr. Dowa submits that since the Plaintiff was charged with two traffic offences of dangerous driving and overloading, and that both charges were dismissed by the District Court, the Plaintiff should be compensated by an award of damages for malicious prosecution. He submits, K5,000.00 would be a fair and reasonable amount to award in this case.

25. Whilst that maybe well and true, the difficulty I have with this head of damages is that, it has not been pleaded by the Plaintiff in the Statement of Claim endorsed to the Writ of Summons. It is trite law in this jurisdiction that where there are no pleadings, a party is not at liberty to lead evidence and consequently submissions against the other party in a court proceeding. See Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214 and Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247.

26. For this reason, whilst I note that there was evidence led to support the submissions of the Plaintiff for an award under this head of damages, I must decline an award.

27. Fourthly, the Plaintiff claims special damages. He says that he paid his bail money, other District Court fees and medical bills. Mr. Dowa submits in his written submissions that there is evidence in the Affidavit of the Plaintiff (Exhibit "P1") that these costs have neither being disputed nor denied by the Defendants and the Court should award them. He submits a total cost of K200.00 under this head of damages.

28. Again, the difficulty I have with this head of damages is that, it has not been pleaded by the Plaintiff in the Statement of Claim endorsed to the Writ of Summons. Therefore, in my view, the Plaintiff is not entitled to claim damages for special damages even though there is evidence supporting the claim. See Salio Tabanto’s case (supra) and Tabie Mathias Koim & Ors (supra). For this reason, I make no award under this head of damages.

29. The fifth head of damages the Plaintiff seeks is damages for defamation of character. In his written submission, Mr. Dowa submits that the Plaintiff was defamed by the actions of the policemen when they assaulted and verbally abused him in front of the passengers at the road at Keltiga Primary School and also at the Mt Hagen Police Station. He was publicly ridiculed by the policemen, thus for these reasons, he should be compensated with damages for defamation of his good character.

30. Mr. Dowa suggests K5,000.00 in line with the Pawa Kombea -v- Semal Peke [1994] PNGLR 572 where His Honour Kapi DCJ, awarded K10,000.00 to the Plaintiff as damages for defamation of character. In that case, on 01st November 1991, the Plaintiff had driven to Mendi from Mount Hagen on a hired vehicle. He went there because of the political crisis over the position of the Deputy Premier. At about 5.30 pm, as he was returning to visit a friend in Mendi, he was arrested by Inspector Yangen of Mendi Police Station. This arrest was prompted by a complaint laid by the Defendant that the Plaintiff had abducted a female called Maria at gunpoint on 15th September 1991 at Iomba village and had raped her. He was arrested and locked up in the Mendi Police Station cells. Bail was refused, and he was not given his right to make any communication with his wife, relatives, or a lawyer. He was specifically refused to make contact with a lawyer named David Lova, who was staying at Kiburu Lodge at Mendi.

31. On Monday 4th November 1991, he was taken to the District Court. He was not granted bail and was further remanded in custody. Later that day, Maria visited him in the cell and told him that all reports to the police were false and that she would be prepared to testify on his behalf in Court. By 04th November 1991, relatives, family members, and political supporters had heard of the arrest and they came to visit him in Mendi. He was in custody until he was granted bail upon application made by David Lova on 14th November 1991. As a result of this event, the matter became public knowledge and was the subject of daily news reports on the radio. The matter was also reported in the Post-Courier in an article "Ex-Premier on rape charge", on 14th November 1991.

32. His Honour accepted that the allegations in the article were false and that the Plaintiff had not been a Premier of Southern Highlands Province. Further, all these reports had brought shame and personal grief to the Plaintiff. It almost resulted in the Plaintiff's trip to England for the World Trade Fair cancelled and an application by the Plaintiff for a loan from the Agricultural Bank refused. His Honour concluded that the case was a serious case of defamation of character.

33. In the present case, this is another one of those heads of damages where I have difficulty awarding because it has not been pleaded by the Plaintiff in the Statement of Claim endorsed to the Writ of Summons. In my view, the Plaintiff is not entitled to claim damages for defamation of character even though there is evidence supporting the claim. See Salio Tabanto’s case (supra) and Tabie Mathias Koim & Ors (supra). For this reason, I make no award under this head of damages.

34. The sixth head of damages is exemplary damages. In his written submissions, Mr. Dowa submits that first, the assault inflicted on the Plaintiff is unconstitutional and secondly, the inhuman treatment administered by the policemen against the Plaintiff is also unconstitutional. He submits that exemplary damages are awarded first to punish the tortfeasor and secondly, to compensate the victim or the injured party for the loss suffered. He asks for K5,000.00 for exemplary damages.

35. The first problem with this head of damages is that, none of the individual policemen have been named in the proceeding so as to enable the Court to order them to pay exemplary damages. For it is settled law in this jurisdiction that the State cannot be held liable for exemplary damages for actions of its agent and servants like the policemen in this case. I made this position very clear after I referred to the Supreme Court judgment of Abel Toma -v- The State (1997) SC518 in James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486, where I said at p 27:

"The Plaintiffs also claims K 5,000.00 and K 10,000.00 as exemplary damages against all the First Defendants and also the Second Defendant. But the law and case authorities now say that for exemplary damages, the Second Defendant cannot be held liable for the wrongful acts and or omissions of its servants and agents. See the cases of Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85 and Abel Tomba -v- The State (1997) SC518. These were illegal police raids cases but the principle of law is the same as it is now settled that if individual policemen are identified, they must be held liable for exemplary damages."

36. In James Liwa & Peter Kuriti’s case (supra), the Plaintiffs named the individual policemen involved in the confiscation of the Second Plaintiff’s diver’s licence and PMV licence as First Defendants and the State as the Second Defendant and asked for the State to pay exemplary damages for their illegal actions. I rejected the Plaintiffs’ submission that the State should be held liable for exemplary damages on behalf of the First Defendants but instead held each of the First Defendants liable and ordered each to personally pay K2,000.00 each to the Plaintiffs. I did so because they were specifically named as Defendants in the proceeding and yet failed to turn up for the trial even though they were represented by Ms J Tindiwi of the Solicitor General’s office.

37. In any case, I distinguish this case from James Liwa & Peter Kuriti’s case (supra) on the basis that, if the Plaintiff in this case seeks exemplary damages, then he should have named the policemen involved in the assaults in this proceeding. In this regard, there is no doubt in my mind that the Plaintiff has sufficiently identified them as Peter Kik and others as the perpetrators. As he has not named them in this proceeding, it is my respectful opinion that it would be unfair and in breach of their right to be heard before I pass judgment on them to order them to pay exemplary damages to the Plaintiff.

39. Finally, the Plaintiff also claims damages for economic loss. He says that as a result of the injuries, he had not operated his PMV truck business for two weeks. He said in his oral and also Affidavit (Exhibit "P1") that he is a PMV driver and has worked as a PMV driver for about 30 years. Secondly, at the relevant time he was assaulted by the policemen, he was driving a PMV truck. This confirms his claim that he works as a PMV driver. Therefore, I am satisfied that the Plaintiff is a PMV driver. He also said that as a PMV driver, he earns K200.00 per day. Multiplying K200.00 by 14 days gives K2,800.00. He says that he lost that amount when he was detained by the police at Mt Hagen Police Station after he was apprehended on 21st December 1999 and subsequently hospitalized.

40. I have considered the proposed amount of K200.00 per day and in my view seems reasonable. For a period of 14 days or two weeks is K2,800.00. Therefore, I award this amount for economic loss.

41. The Plaintiff also claims interest on damages. Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act 1962 provides that interests maybe awarded in the following terms:

(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."

42. By 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.

43. 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 date on which the cause of action arose and the date of the judgment. That is, from the date of the issue of the Writ of Summons of 04th December 2001 to the date of judgment of 19th June 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.

* 8 % of the total judgment sum of K12,800.00 per annum, (General damages, Aggravated damages and Economic loss) is K1,024.00.

1. General damages for pain and suffering	K5,000.00
2. Aggravated damages	K5,000.00
3. Economic loss	K2,800.00
4. 8% interest	K7,697.20
	--------------
Total	K20,497.20 ---------------

It is therefore the judgment of the Court that the Defendants shall pay the Plaintiff a total sum of K20, 497.20 with costs of the proceeding 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.

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

National Court of Papua New Guinea

Kala v Kupo [2009] PGNC 78; N3677 (19 June 2009)