N4396

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 564 OF 2009

JESSIE NAMBA
Plaintiff

V

CONSTABLE MOSES NARU
First Defendant

COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2010: 18 December,
2011: 17 June, 23 September

JUDGMENT

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

A member of the Police Force, while on police duty, deliberately shot the plaintiff in the leg, for no good reason. The injury was so severe his leg had to be amputated below the knee. The plaintiff sued the police officer who shot him, the Commissioner of Police and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the Commissioner and the State, 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 K150,000.00; and special damages at K20.00.

(3)	The breach of constitutional rights was so severe as to warrant an award of exemplary damages, of K30,000.00.

(4)	The plaintiff's human rights were breached on three distinct occasions:

•	when the first shot was fired, which missed;
•	when the next two shots were fired, which struck him;
•	when he was denied medical treatment.

(5)	He was awarded K5,000.00 x 3 = K15,000.00 compensation for breach of human rights.

(6)	The total amount of damages awarded was K195,020.00. In addition, interest of K67,086.80 is payable, making the total judgment K262,106.80.

Cases cited

The following cases are cited in the judgment:

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
Lance Kolokol v The State (2009) N3571
Latham v Henry [1997] PNGLR 435
Peter Kuriti v The State [1994] PNGLR 262
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Seupain v The State (2009) N3573
William Mel v Coleman Pakalia and Others (2005) SC790

TRIAL

This is a trial on assessment of damages.

Counsel

W Akuani, for the plaintiff
No appearance for the defendants

23 September, 2011

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

2. His human rights were breached on Saturday 2 June 2007 at Sisiak 2 on the outskirts of Madang town. The plaintiff was 23 years old at the time. At 2.00 am he was with a group of other young men in a truck, which was pulled over by a police patrol on the road leading to Beon Jail. The police and the State have not made an appearance in this case despite being given adequate opportunity to do so, so the court has only the evidence of the plaintiff to go on. No reason has been provided not to believe his story. There is no evidence that he or any member of his group committed an offence or did anything wrong or did not cooperate with the police. The plaintiff got out of the truck but the police, angry for some reason with the occupants, fired shots in the air and assaulted those members of the group who had not got out immediately. The plaintiff, being afraid of what might happen to him, ran off in the direction of his home. He got only part of the way before being intercepted by the first defendant, Const Moses Naru, of Madang Police. Const Moses shouted at him to stop, which he did, and the plaintiff put his hands in the air as a sign of surrender. Const Moses, however, swore at him and fired a shot at his legs, which missed. Two other shots were then fired into his leg, hitting him in the left leg, causing severe pain and loss of blood. He was taken back to the police vehicle and then to the nearby Jomba police station where he was detained. He continued to lose blood. Later that day the police took him to Modilon General Hospital. He was admitted to the surgical ward. His injured leg was amputated below the knee. He remained in hospital for 54 days. He is permanently disabled.

3. 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 CLAIM

4. The plaintiff is claiming against the State:

•	general damages, K200,000.00;
•	special damages, K20.00;
•	exemplary damages, K30,000.00;
•	compensation under Constitution, Sections 57 and 58, K50,000.00; and
•	damages for breach of the Arrest Act, K10,000.00.

5. He also claims against the Commissioner:
 
•	punitive damages, K50,000.00.

Thus the total amount of damages and compensation claimed is K340,020.00, plus interest.
 
THE APPROACH TO ASSESSING DAMAGES

6. As I indicated in Lance Kolokol v The State (2009) N3571, 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. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action. 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). 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 injury and its after-effects. Then a separate sum will be assessed, which will be compensation for the breaches of human rights committed by the police. Special damages and exemplary damages will be considered separately. As for the alleged breach of the Arrest Act, this aspect of the case has not been well articulated and is subsumed by other causes of action, so there will be no separate award of damages for it. Likewise with the claim for punitive damages against the Commissioner of Police. This has not been properly pleaded and besides that there is no head of damages known as 'punitive damages' in the laws of Papua New Guinea. I will therefore assess damages in the following categories:

•	general damages;
•	special damages;
•	exemplary damages; and
•	compensation under Constitution, Sections 57 and 58.

GENERAL DAMAGES

7. This is intended to compensate the plaintiff for the pain and suffering, inconvenience, loss of use of his leg and other losses that are endured by anyone who suffers this sort of injury. In Seupain v The State (2009) N3573 I reviewed the amounts of damages awarded in negligence cases for an amputated leg. In that case the plaintiff was a three-month old baby who was negligently administered an inappropriate drug by an aid post orderly. General damages were assessed at K100,000.00. In the present case, the plaintiff was 23-years old at the time he was shot. He can remember the incident, which will no doubt haunt him for the rest of his life. It is difficult to overestimate the trauma, distress and indignity caused to this young man. It is extremely difficult to quantify what he has lost. Because of the circumstances in which he was injured and because he was at an age at which he had a full appreciation of what happened to him and how unnecessary and callous were the actions of the police officer who shot him and because such an abrupt change to his life was wrought upon him a greater amount than that awarded in Seupain is warranted. I assess general damages at K150,000.00.

SPECIAL DAMAGES

8. The plaintiff claims just K20.00 for cost of a medical report. I award that sum.

EXEMPLARY DAMAGES

9. 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.

10. The present case did not involve an unauthorised police operation. An individual police officer has been named as a defendant. The case falls more within the first category than the second. Therefore the circumstances of the case do not exclude the awarding of exemplary damages. 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.

11. 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? The purpose of an award of exemplary damages is to punish the defendant and vindicate the distinction between a wilful and an innocent act (Latham v Henry [1997] PNGLR 435). The purpose is not to unjustly enrich a plaintiff, but symbolise public indignation of the defendant's conduct (Peter Kuriti v The State [1994] PNGLR 262). 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).

12. In this case, default judgment has been entered only against the second and third defendant, the State. The first defendant, Const Moses Naru, the officer who shot the plaintiff, cannot be held to account, through this judgment, for his action. It would not be just to deny the plaintiff exemplary damages for that reason. I am satisfied that this is a case where the other defendants – the Commissioner of Police and the State – have obviously failed in their duty to train and educate the police officer in question on proper and acceptable methods of policing. The State, in particular, must be penalised for the wilfully unconstitutional actions of its officer. An award of exemplary damages will symbolise the indignation, and disgust, of this Court and the People of Papua New Guinea about what was done to the plaintiff. The breach of constitutional rights was sufficiently severe to warrant an award of exemplary damages. I will award the amount claimed: K30,000.00.

COMPENSATION UNDER THE CONSTITUTION

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

14. The treatment meted out to the plaintiff was horrific. There was no good reason for him to be shot. It might be argued that he should not have run away. He brought the problem upon himself by not cooperating with the police. It is very easy to say that in hindsight. But the plaintiff has given evidence that he was scared. And I accept that evidence. As I said in Kolokol, 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. The State must be held to account for human rights breaches committed by police officers.

15. Sections 57 and 58 of the Constitution provide that human rights breaches are enforceable through an award of compensation. The plaintiff's human rights were breached on three distinct occasions:

•	when the first shot was fired, which missed;
•	when the next two shots were fired, which struck him;
•	when he was denied medical treatment.

16. On each of those occasions, the three of his human rights outlined above were breached. I will allow K5,000.00 for each occasion so the amount awarded for breach of constitutional rights is K15,000.00.

SUMMARY OF DAMAGES AWARDED

•	General damages = K150,000.00
•	Special damages = K20.00
•	Exemplary damages = K30,000.00
•	Compensation under the Constitution = K15,000.00

•	Total damages and compensation = K195,020.00.

INTEREST

17. 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.

18. 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.

19. 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% pa. In view of current economic conditions in the country I think 8% pa 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 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, 2 June 2007. The end of the period is the date of judgment, 23 September 2011. The appropriate period is 4.3 years.

20. 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 years;

•	A is the amount of interest.

Thus:

•	K195,020.00 x 0.08 x 4.3 = K67,086.80.

COSTS

21. 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.

REMARKS

22. This is a disturbing case as it is yet another example of ill-discipline on the part of the police and appalling human rights breaches that have severely and permanently damaged a young Papua New Guinean's quality of life. Cases like this undermine respect for the Police Force and promote an image of Papua New Guinean policemen as thugs in uniform. I recommend that the police officer who shot the plaintiff be subject to disciplinary and/or criminal proceedings.

23. Another worrying aspect of the case is that it is another instance of the Solicitor-General not being able to organise a proper defence of claims against the State. Perhaps there is another side to this story that should have been told. Perhaps there was good reason for the police patrol to pull over the truck, fire shots in the air, assault the passengers, and shoot the plaintiff. The court will never hear the full story if defendants do not appear to defend themselves. The court will act on the best evidence available, and here it was the plaintiff's version of what happened, sworn on oath, which has been accepted. The Solicitor-General should seriously consider establishing a permanent office in Madang. The savings that would be made as a result of having cases against the State properly defended in Madang may well cover the costs of establishing and manning an office here.

JUDGMENT

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

(1)	Damages and compensation payable by the second and third defendants to the plaintiff, of K195,020.00;

(2)	interest payable by the third defendant to the plaintiff, of K67,086.80;

(3)	being a total judgment lump sum of K262,106.80;

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

Judgment accordingly.
_____________________________
William Akuani Lawyers: Lawyers for the Plaintiff	
Solicitor-General: Lawyer for the Defendants