N4855

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 80 0F 2008

STEVEN KUEFA
First Plaintiff

KEN FUNDO TOPA
Second Plaintiff

V

GEORGE SUNKU
First Defendant

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2012: 21, 28 June, 20 July, 31 October

DAMAGES – assessment of damages after entry of default judgment – human rights breaches – general damages for assault by police – damages for breach of human rights: inhuman treatment, denial of full protection of the law, infringement of right to liberty – exemplary damages – special damages.

The plaintiffs claimed that members of the Police Force, while on police duty, entered their home without a warrant, ordered them out at gunpoint, assaulted them and then detained them in a police lock-up for 13 days without charge before releasing them. The plaintiffs sued the police officer (first defendant) who allegedly led other police in entering the residence and assaulting and detaining them, the Commissioner of Police (second defendant) and the State (third defendant), claiming damages for assault and breach of human (constitutional) rights. Liability was established against the defendants by default judgment. This was a trial on assessment of damages. The first plaintiff was represented at the trial and adduced evidence in support of his claim for damages. The second plaintiff was not represented and no evidence was adduced on his behalf. The first and second defendants were not represented and no evidence was adduced on their behalf. The third defendant was represented but adduced no evidence. The first plaintiff claimed damages for assault (K3,000.00), breach of constitutional rights (K20,000.00), exemplary damages (5,000.00) and special damages (K13,200.00), a total claim of K41,200.00. The third defendant argued that nothing should be awarded due to defects in both the pleadings and the evidence but that if the court were inclined to make an award of damages it should be restricted to K500.00 for assault, K200.00 for breach of constitutional rights and K500.00 for special damages, a total of K1,200.00.

Held:

(1)	The presumption arises on entry of default judgment that the judgment resolves all questions of liability on the matters pleaded in the statement of claim. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and causes of action are pleaded with sufficient clarity. If the facts and causes of action are reasonably clear liability should be regarded as proven.

(2)	Here the facts and causes of action are clear: that the first defendant led a police operation that resulted in the first plaintiff being assaulted and his human rights under the Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law) and 42 (liberty of the person) being breached.

(3)	The second plaintiff was awarded nothing as there was no evidence in support of his claim.

(4)	The third defendant's arguments that the statement of claim and the evidence were so defective and deficient to warrant a zero award of damages to the first plaintiff were rejected.

(5)	Damages were assessed for the four categories of damages claimed by the first plaintiff: assault (K2,000.00), breach of constitutional rights (K5,250.00), exemplary damages (K2,000.00) and special damages (0), a total award of K9,250.00. In addition, interest of K4,595.40 is payable, making the total judgment sum K13,845.40.

Cases cited

The following cases are cited in the judgment:

Dempsey v Project Pacific Ltd [1985] PNGLR 93
Justin Bau & 60 Others v Paul Karl & The State (2010) N4123
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
Molin Chapau v The State (1999) N1933
Moses Luluaki v Pacific Star Ltd and The State (2011) N4360
Obed Lalip v Fred Sikiot (1996) N1457
William Mel v Coleman Pakalia (2005) SC990
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages.

Counsel

J Javapro, for the first plaintiff
A Samol, for the third defendant

31 October, 2012

1. CANNINGS J: This is a trial on assessment of damages following entry of default judgment. The plaintiffs are two men who were on 16 August 2006 living in a house in Kanage Street, Five Mile, National Capital District. They allege that at 8.30 pm an armed police squad led by the first defendant George Sunku, a member of the Police Force, entered their house without a warrant, ordered them out at gunpoint, assaulted them and then detained them at the Boroko Police Lock-up for 13 days without charge before releasing them. The plaintiffs sued the first defendant and the Commissioner of Police (second defendant) and the State (third defendant), claiming damages for assault and breach of human (constitutional) rights. The defendants failed to comply with the directions of the court regarding the proposed trial on liability and default judgment was ordered on 18 February 2011 subject to an assessment of damages.

2. At the trial on assessment of damages the first plaintiff was represented by Mr Javapro of the Office of the Public Solicitor and adduced evidence (both affidavit and oral evidence) in support of his claim for damages. The second plaintiff was not represented and no evidence was adduced on his behalf. The first and second defendants were not represented and no evidence was adduced on their behalf. The third defendant was represented by Ms Samol of the Office of the Solicitor-General but adduced no evidence.

3. The first plaintiff claimed damages for assault (K3,000.00), breach of constitutional rights (K20,000.00), exemplary damages (K5,000.00) and special damages (K13,200.00), a total claim of K41,200.00. The third defendant argued that nothing should be awarded due to defects in both the pleadings and the evidence but that if the court were inclined to make an award of damages it should be restricted to K500.00 for assault, K200.00 for breach of constitutional rights and K500.00 for special damages, a total of K1,200.00.

THE SECOND PLAINTIFF'S CLAIM

4. As he has not been represented (for reasons unknown to the court) and no evidence has been adduced on his behalf, he will be awarded nothing.

THE ARGUMENT THAT NOTHING SHOULD BE AWARDED

5. The third defendant argued that nothing should be awarded to the first plaintiff due to defects in both the pleadings and the evidence. The pleadings were said to be defective as the claim for relief simply referred to the four categories of damages being sought without specifying the amounts claimed. This argument has no merit. The statement of claim was making a claim for "unliquidated" (ie unspecified) damages as distinct from a "liquidated" (specific) claim. This is permissible under Order 12, Rule 28 of the National Court Rules (Dempsey v Project Pacific Ltd [1985] PNGLR 93, Molin Chapau v The State (1999) N1933).

6. The evidence was argued to be deficient as it was uncorroborated and contradictory. Only the first plaintiff gave direct evidence of what allegedly happened and his oral evidence contradicted the pleadings and his affidavit in material respects, eg the statement of claim pleads that there was a blackout when the police entered the house, but in his affidavit the first plaintiff says that he was watching television; in his affidavit he deposes that he had no idea why the police would want to raid his house and drag him out but in his oral evidence he conceded that the police asked him if he was "SK" and he said yes, so he must have known that the police were after him. Ms Samol submitted that on many occasions the National Court has emphasised that a plaintiff who secures a default judgment still has the obligation of proving his losses and the Court will be vigilant against uncorroborated, suspicious or vague claims (Obed Lalip v Fred Sikiot (1996) N1457, Yooken Paklin v The State (2001) N2212) and this case can be described in those terms.

7. There is some merit in the argument that parts of the first plaintiff's oral evidence were inconsistent with the statement of claim and the affidavit evidence and it is true that his evidence is uncorroborated. However, it is sworn testimony, it is unchallenged and the contradictions in it are in my view not material and are explicable in terms other than a conclusion that the evidence is fabricated. I reject the submission that deficiencies in the evidence warrant a zero award of damages.

8. It must be remembered that this is a trial on assessment of damages following entry of default judgment. Though a judge assessing damages following entry of default judgment may revisit the question of liability the discretion to do so must be exercised sparingly. The presumption arises on entry of default judgment that the judgment resolves all questions of liability on matters pleaded in the statement of claim. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity. If so, liability should be regarded as proven. Only if the facts or cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability (William Mel v Coleman Pakalia (2005) SC990; Moses Luluaki v Pacific Star Ltd and The State (2011) N4360).

9. I have made a cursory inquiry and am satisfied that the facts and causes of action alleged against the defendants are, subject to a couple of exceptions highlighted below, pleaded with sufficient clarity. The causes of action which have been established against the three defendants are:

•	assault (this is a common law action, a tort, better described as trespass to the person); and

•	breaches of the human rights enshrined in the following provisions of the Constitution:

•	Section 36 (freedom from inhuman treatment);
•	Section 37 (protection of the law);
•	Section 42 (liberty of the person).

10. The statement of claim also alleges breaches of Sections 39 ("reasonably justifiable in a democratic society" etc) and 197 (functions of the police force) of the Constitution. However, neither of those provisions, though each is relevant to interpretation of the human rights provisions of the Constitution, gives rise to an enforceable cause of action, at least not in these proceedings.

11. I will now assess each of the four categories of damages being claimed by the first plaintiff.

FIRST CATEGORY: DAMAGES FOR ASSAULT

12. It has been pleaded and there is adequate evidence to prove that on the night of 16 August 2006 members of a police squad under the command of the first defendant entered the first plaintiff's house without a warrant, ordered him out at gunpoint while at the same time grabbing his neck and blindfolded him tightly and forced him into a police vehicle and drove him to Boroko Police Lock-up where he was detained for 13 days without charge.

13. There is no medical evidence of the nature and extent of the resultant injuries and the plaintiff's evidence is short on detail as to what physical injury he suffered. However, it is clear that he was unlawfully assaulted and that he was shocked and traumatised by what happened. I award K2,000.00 damages.

SECOND CATEGORY: DAMAGES FOR BREACH OF CONSTITUTIONAL RIGHTS

14. Damages will be awarded in respect of each of the three breaches that have been pleaded and proven.

•	Section 36 (freedom from inhuman treatment): I consider that a small amount is warranted: K1,000.00.

•	Section 37 (protection of the law): the first plaintiff was denied access to a lawyer and not informed of his constitutional rights: K1,000.00.

•	Section 42 (liberty of the person): the first plaintiff's constitutional rights were violated as he was detained at Boroko Police Lock-up for 13 days without charge and without being taken before a court. In Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807 I awarded damages at the rate of K250.00 per day of unlawful detention to a group of men whose human rights were breached in a similar manner. I will adopt that rate here and award damages of K250.00 per day x 13 days = K3,250.00.

15. The total amount awarded for breach of constitutional rights is K1,000.00 + K1,000.00 + K3,250.00 = K5,250.00.

THIRD CATEGORY: EXEMPLARY DAMAGES

16. Section 12(1) of the Claims By and Against the State Act 1996 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.

17. The breach of constitutional rights was both severe and continuous. Having regard to my decision in Justin Bau & 60 Others v Paul Karl & The State (2010) N4123 where each of the 61 plaintiffs was awarded K1,000.00 exemplary damages in respect of a police raid of their settlement, I find the present case more serious in view of the fact that the breaches continued for 13 days. I award K2,000.00 exemplary damages.

FOURTH CATEGORY: SPECIAL DAMAGES

18. The claim for a K4,000.00 feast that was arranged after the first plaintiff was released from custody is too remote. Claims for out-of-pocket expenses of K9,200.00 are not supported by the statement of claim and the evidence is vague. Nothing will be awarded.

SUMMARY OF DAMAGES AWARDED

(1)	Damages for assault =	K2,000.00	
(2)	Breaches of constitutional rights = 	K5,250.00	
(3)	Exemplary damages 	K2,000.00	
(4)	Special damages =	0	
		
Total damages =	K9,250.00	

INTEREST

19. Interest will be awarded at the rate of 8 per cent per annum on the amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of the incident, 16 August 2006, to the date of judgment, a period of 6.21 years, 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:

•	K9,250.00 x 0.08 x 6.21 = K4,595.40.

COSTS

20. 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.

ORDER

(1)	Damages are payable by the defendants to the first plaintiff in the sum of K9,250.00;

(2)	Interest is payable by the defendants to the first plaintiff in the sum of K4,595.40;

(3)	Being a total judgment of K13,845.40;

(4)	The second plaintiff is not entitled to damages;

(5)	Costs of the proceedings shall be paid by the defendants to the first plaintiff on a party-party basis, which shall if not agreed be taxed.

Judgment accordingly.
_____________________________________

Public Solicitor: Lawyer for the first plaintiff
Solicitor-General: Lawyer for the third defendant