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Songkae v Wagambie [2012] PGNC 150; N4807 (27 September 2012)

N4807

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1782 0F 2001

MERONAS SONGKAE, RAYMOND FUAVE, SAROWAS KIKARA, FRANCIS NEVASO, SIKMAN FEZAMO & EIGHT OTHER PERSONS NAMED IN THE SCHEDULE TO THE STATEMENT OF CLAIM
Plaintiffs

V

INSPECTOR TONY WAGAMBIE JNR, POLICE TASK FORCE MEMBERS AND OTHER POLICEMEN UNDER HIS COMMAND
First Defendants

JOHN WAKON, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2012: 27 April, 26 June, 24 September

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – compensation for breach of human rights – unlawful actions of police – vicarious liability – plaintiffs shot in foot during course of apprehension – denial of medical treatment while in custody.

Members of the Police Force, while on police duty, shot ten men in the foot and arrested three others without good reason, then detained the 13 of them for 64 days before they were released from custody during which time they were denied medical treatment and criminal charges against them were struck out by the District Court. The plaintiffs sued the police officer in charge of the police squad which shot and detained them, the Commissioner of Police and the State, claiming damages for breach of human (constitutional) rights). Liability was established against the defendants by default judgment. This was a trial on assessment of damages. The plaintiffs claimed damages for: wrongful injury or trespass to the person (K540,000.00), false imprisonment (K832,000.00) and costs and out-of-pocket expenses (K744,000.00), a total claim of K2,116,000.00. The defendants argued that nothing should be awarded due to defects in the pleadings.

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 it is reasonably clear what the facts and causes of action are, liability should be regarded as proven.

(2) Here the facts and causes of action are clear: that the first defendants breached the plaintiffs' human rights under the Constitution, Sections 32 (right to freedom), 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts) and 42 (liberty of the person). The defendants' argument that they are not liable for damages was rejected.

(3) In making an assessment of damages the court should be guided by the submissions of the plaintiff and the relief sought in the originating process (in this case the statement of claim). Here the plaintiffs sought three categories of damages: wrongful injury or trespass to the person, false imprisonment and costs and out-of-pocket expenses.

(4) Damages for wrongful injury or trespass to the person properly flowed from the causes of action in respect of breaches of the Constitution, Sections 32, 36, 37, 41 and 42. The circumstances of each plaintiff were individually considered, resulting in awards of damages in the range of zero to K50,000.00 each.

(5) Damages for false imprisonment properly flowed from the causes of action in respect of the breaches of the Constitution, Sections 32, 36, 37, 41 and 42. The circumstances of each of the first 10 plaintiffs were the same, resulting in awards of damages of K32,000.00 each; as for the other three plaintiffs, as they were arrested and detained in different circumstances K16,000.00 each was awarded to two of them and nothing to one of them (for whom no evidence was adduced).

(6) The claims for costs and out-of-pocket expenses were not supported by the statement of claim and the evidence was vague. Nothing was awarded.

(7) The total amount of damages awarded for all plaintiffs was K265,000.00 for wrongful injury or trespass to person + K352,000.00 for false imprisonment = K617,000.00. In addition, interest of K521,241.60 is payable, making the total judgment sum K1,138,241.60.

Cases cited

The following cases are cited in the judgment:

Kewakali v The State (2011) SC1091
Lance Kolokol v The State (2009) N3571
Luluaki v Pacific Star Ltd and The State (2011) N4360
William Mel v Coleman Pakalia (2005) SC990

TRIAL

This was a trial on assessment of damages.

Counsel

G Kubak, for the Plaintiffs
E S Geita, for the Defendants

24 September, 2012

1. CANNINGS J: This is a trial on assessment of damages following entry of default judgment. The plaintiffs are 13 men from Eastern Highlands Province. They say that on 9 October 1999 at Henganofi they were without good reason shot in the foot and/or detained by a police squad led by Inspector Tony Wagambie Jnr and that they were detained for 64 days before they were released from custody during which time they were denied medical treatment and criminal charges against them were struck out by the District Court. They commenced proceedings on 10 December 2001 against Inspector Wagambie as first defendant, the Commissioner of Police as second defendant and the State as third defendant, claiming damages for breach of human (constitutional) rights. The writ was served on 1 March 2002. Default judgment, due to the defendants' failure to comply with a court order to supply names of all members of the police squad, was ordered on 17 June 2005.

2. Three of the plaintiffs have died since commencement of the proceedings and on 22 August 2011 the National Court granted leave for customary representatives of the deceased men to pursue their claims. The deceased plaintiffs and their customary representatives are:

• Plaintiff No 2 Raymond Fuave deceased: Doris Fuave;
• Plaintiff No 10 Inoiso Sukeo deceased: Gillian Sukeo;
• Plaintiff No 11 Uve Agive deceased: Roselyn Agive.
  

3. The present trial was conducted on 27 April and 26 June 2012. The delay in having the matter brought to trial appears to have arisen because of a number of changes in the plaintiffs' lawyers and unsuccessful attempts to settle the claims out of court. The delay is not the fault of the parties or the court and is not relevant to the assessment of damages.

4. The plaintiffs are claiming three categories of damages: wrongful injury or trespass to the person (K540,000.00), false imprisonment (K832,000.00) and costs and out-of-pocket expenses (K744,000.00), a total claim of K2,116,000.00. The defendants argue that nothing should be awarded due to defects in the pleadings.

THE DEFENDANTS' THRESHOLD ARGUMENT

5. The defendants argue that the pleadings are defective as none of the members of the police squad allegedly responsible for shooting and detaining the plaintiffs other than Inspector Wagambie were named as defendants contrary to the requirement that all alleged wrongdoers be named in the originating process (Kewakali v The State (2011) SC1091). Further, it was not pleaded that Inspector Wagambie issued orders to the police squad that resulted in the allegedly unlawful shooting and detention; therefore the basis of vicarious liability of the defendants was not established by the pleadings. Mr Geita for the defendants submitted that the entire proceedings should be dismissed and that nothing should be awarded to the plaintiffs.

6. I reject these submissions. 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 it is reasonably clear what the facts and cause of action are, 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; Luluaki v Pacific Star Ltd and The State (2011) N4360). I have made a cursory inquiry and am satisfied that the facts and cause of action alleged against the defendants are pleaded with sufficient clarity.

7. The causes of action which have been established against the first defendants – Inspector Wagambie and members of the task force under his command – are breaches of the human rights enshrined in the following provisions of the Constitution:

• Section 32 (right to freedom);
• Section 36 (freedom from inhuman treatment);
• Section 37 (protection of the law);
• Section 41 (proscribed acts); and
• Section 42 (liberty of the person).
  

8. The State had ample time to apply by notice of motion to set aside the entry of default judgment, or to appeal against the judgment, which would have been the preferable courses of action to take. To award these men nothing for what happened to them almost 13 years ago and to do so seven years after entry of default judgment because of alleged defects in the pleadings would be a gross injustice.

APPROACH TO ASSESSMENT OF DAMAGES

9. In making an assessment of damages the court should be guided by the submissions of the plaintiff and the relief sought in the originating process (in this case the statement of claim). Here the plaintiffs sought three categories of damages: wrongful injury or trespass to the person, false imprisonment and costs and out-of-pocket expenses. A claim for exemplary damages was alluded to in the statement of claim but nothing was specifically sought in submissions so nothing will be awarded. I will confine the assessment of damages to the three categories on which submissions were made.

FIRST CATEGORY: DAMAGES FOR WRONGFUL INJURY OR TRESPASS TO THE PERSON

10. It has been pleaded and there is adequate evidence to prove that on the morning of 9 October 1999 members of a police squad under the command of Inspector Wagambie Jnr shot ten of the plaintiffs in the foot. Some of the plaintiffs were on a stationary PMV bus, some were standing outside it when the police squad arrived, suspecting that the plaintiffs were unlawfully in possession of weapons. Ten of the plaintiffs were ordered at gunpoint to lie face down on the ground and each of them was shot at point blank range in the foot. There is ample medical evidence of the nature and extent of the resultant injuries.

11. Each of the ten plaintiffs was examined in January 2005 by Dr B B Uvako and Dr K Vanuga, Director of Medical Services, Goroka Base Hospital. A report was prepared in respect of each of them and a medical assessment made of the extent of their disabilities. It is evident that the most serious injury was suffered by Meronas Songkae who was shot in the left ankle joint. Drs Uvako and Vanuga concluded that he has suffered a 90% permanent functional loss of his left foot. The least serious injury was suffered by Sarowas Kikara who was shot once near the heel of the left foot. Drs Uvako and Vanuga concluded that his wound had healed well with minimal scarring and that he had suffered a 10% functional loss of the left foot.

12. I will first of all assess damages for Mr Songkae and then assess damages for the other nine plaintiffs by comparing the nature and extent of their injuries to his. I will use my decision in Lance Kolokol v The State (2009) N3571 as a point of comparison. The police unlawfully shot the plaintiff twice in the left leg. He suffered a 20% loss of function and effective use of the limb. He was awarded general damages of K25,000.00. I consider that Mr Songkae's injuries are more serious than Mr Kolokol's. I assess damages for Mr Songkae as K50,000.00. Comparing Mr Kikara's injury to that of Mr Songkae, and taking into account that my assessment takes into account the circumstances in which the ten plaintiffs were shot and that they are subsistence farmers and that they each have an impaired ability to sustain themselves and their families and a consideration of their individual circumstances, I award Mr Kikara K10,000.00. Having compared and contrasted the medical evidence for the other plaintiffs who were shot I assess damages as shown in the following table. The number assigned to each plaintiff is taken from the schedule in the statement of claim.

TABLE 1: DAMAGES FOR TRESPASS TO PERSON

SECOND CATEGORY: DAMAGES FOR FALSE IMPRISONMENT

13. It has been pleaded and there is adequate evidence to prove that the ten plaintiffs who were shot spent 64 days in custody before being released by order of the District Court due to the charges against them being dismissed. In that time they were denied proper medical treatment and access to a lawyer. Ms Kubak submitted that they should be awarded the sum of K1,000.00 damages for each day that their human rights were breached, ie K64,000.00 each. I will award half of what is claimed. I have taken into account that they were taken before the District Court on the first working day after they were detained and the District Court ordered that they be remanded in custody. Their detention was not inherently unlawful but given the condition that they were in and the conditions in which they were detained and considering the long period of denial of access to a lawyer, it became unlawful. Their human rights were breached. They are entitled to compensation. They will receive K32,000.00 each.

14. As for the three plaintiffs who were not shot, the evidence is that they were arrested by the first defendants on the Okuk Highway in Eastern Highlands Province later on the same morning on which the first ten plaintiffs were shot. This group of three plaintiffs was also suspected of unlawful firearm possession. They spent an equal amount of time in custody before the charges against them were dismissed. They were denied their constitutional rights but they were not denied medical treatment so their damages will be half that of the first ten plaintiffs: K16,000.00 each for Uve Agive and Laio Beseo. No evidence has been adduced by or on behalf of Kobi Nokohe, and Ms Kubak has explained that he has lost contact with the other plaintiffs, so nothing will be awarded to him. The total amount awarded for all plaintiffs is K352,000.00.

THIRD CATEGORY: DAMAGES FOR COSTS AND OUT-OF-POCKET EXPENSES

15. The claims for costs and out-of-pocket expenses are not supported by the statement of claim and the evidence is vague. Nothing will be awarded.

SUMMARY OF DAMAGES AWARDED

16. The total amount of damages awarded to each plaintiff is summarised in the following table.

TABLE 2: DAMAGES AWARDED TO EACH PLAINTIFF

INTEREST

17. I will award interest at the rate of 8 per cent per annum to each of the plaintiffs, on the amount of their damages. This is done under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. I will award interest from the date of service of the writ, 1 March 2002, to the date of this judgment, a period of 10.56 years. I calculate the amount of interest by applying the following formula:

D x I x N = A

Where:

• D is the amount of damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

18. For example, for Meronas Songkae:

• K82,000.00 x 0.08 x 10.56 = K69,273.60.
  

19. For Uve Agive:

• K16,000.00 x 0.08 x 10.56 = K13,516.80.
  

20. The awards of interest to all plaintiffs are shown in the schedule at the end of this judgment.

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. I see no reason to depart from the general rule. The State will pay the plaintiffs' costs.

JUDGMENT

22. The Court will order that:

(1) damages are payable by the third defendant to the plaintiffs, as prescribed by "damages awarded" in the Schedule;

(2) interest is payable by the third defendant to the plaintiffs, as prescribed by "interest awarded" in the Schedule;

(3) a total judgment sum is awarded to each plaintiff, as prescribed by "judgment sum" in the Schedule;

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

SCHEDULE

Judgment accordingly.
_____________________________

Nobert Kubak & Company Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants