N4658

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1644 OF 2001

VINCENT KERRY
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

CANNINGS J

Waigani: 21 February 2012
Madang: 16 March 2012
Waigani: 2 May 2012

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

A member of the Police Force, while on police duty, shot the plaintiff in the leg for no good reason. The injury was so severe the plaintiff's leg had to be amputated above the knee. The plaintiff succeeded at an earlier trial in establishing a cause of action in negligence against the State, which was held to be vicariously liable for the conduct of the police. A separate trial on assessment of damages was conducted. The plaintiff claimed general damages (K350,000.00), special damages (K990.00), exemplary damages (K45,000.00) and compensation for breaches of human rights (K30,000.00), a total claim of K425,990.00.

Held:

(1)	General damages were assessed at K200,000.00. Special damages were assessed at K990.00. The breach of constitutional rights was so severe as to warrant an award of exemplary damages, of K30,000.00. The plaintiff's human rights were breached on three distinct occasions, so he was awarded K5,000.00 x 3 = K15,000.00 compensation for breach of human rights.

(2)	The total amount of damages and compensation awarded was K245,990.00. In addition, interest of K212,928.94 is payable, making the total judgment sum K458,918.94.

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
Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573
MVIL v Maki Kol (2007) SC902
Latham v Henry [1997] PNGLR 435
Peter Kuriti v The State [1994] PNGLR 262
Seupain v The State (2009) N3573
The State v Thomas Sange, Vincent Kerry, Kito Aso & Steven Kaumu (2005) N2805
Vincent Kerry v The State (2007) N3127

TRIAL

This was a trial on assessment of damages.

Counsel

B Takin, for the plaintiff
R Gelu, for the defendant

2 May, 2012 

1. CANNINGS J: The plaintiff, Vincent Kerry, has successfully sued the State for negligence by members of the Police Force in an incident near Kimbe in which he was shot, as a result of which his right leg was amputated. Judgment was entered against the State following a trial. The plaintiff has come back to the court for an assessment of damages.

2. The following findings of fact were made in the earlier trial. On the night of Saturday 7 July 2001, the plaintiff, an East Sepik man who had been living in West New Britain since 1992 and who was then aged 27, was sleeping at a block near Dagi Double-Bridge, about 5 km from Kimbe. He was a suspect in a criminal investigation into the murder of a member of the Police Force, Chief Sergeant Henry Wartovo, that had taken place at Gigo, in Kimbe, three nights earlier. A group of three or four police officers came to the block late in the night to question the plaintiff over his involvement in the murder. The police forcibly removed him and another young man from the block, took them to the Kimbe-Hoskins Highway at Aling and questioned them as to their involvement in the murder. The plaintiff was not armed and did not resist arrest. He told them he had no involvement in the murder and did not know who killed the deceased. One of the police officers, First Constable Felix Rangit, then shot at him at close-range three times with a firearm. The first shot missed him, the second blew off his left thumb and the last one shattered his right leg above the knee. He was taken to Kimbe General Hospital and admitted to the emergency and accident ward where General Surgeon Dr Sammy Thomas examined him at 3.00 am on Sunday 8 July 2001, and at 4.30 am performed lifesaving surgery consisting of an above-knee amputation of the right leg. The plaintiff was hospitalised for three weeks and discharged on 29 July 2001. He filed the present proceedings in November 2001. The police later charged him, with at least three others, with the murder of Chief Sergeant Wartovo. In February 2005 he faced trial in the National Court at Kimbe and was acquitted. Further details of the incident are in the judgment on liability, Vincent Kerry v The State (2007) N3127.

THE CLAIM

3. The plaintiff is claiming:

•	general damages, K350,000.00;
•	special damages, K990.00;
•	exemplary damages, K45,000.00;
•	compensation for human rights breaches, K30,000.00; being
•	a total of K425,990.00.

GENERAL DAMAGES

4. 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. An award of general damages should also take account of the circumstances in which the injury was inflicted. 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 Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573 I assessed damages in a case in which the plaintiff was shot for no good reason by a member of the Police Force and had to have a leg amputated. The plaintiff was 23-years old at the time he was shot. He can remember the incident, which I considered would haunt him for the rest of his life. I said it was difficult to overestimate the trauma, distress and indignity caused and it was 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 was warranted. I assessed general damages at K150,000.00.

5. My decisions in those cases have not been appealed against, which is interesting as the awards of K100,000.00 in Seupain and K150,000.00 in Namba were higher than awards for similar injuries in previous cases. Ms Gelu, for the State, has suggested that those awards are out of kilter with awards of general damages for the type of injury suffered by the plaintiff. She relies on the decision of the Supreme Court in MVIL v Maki Kol (2007) SC902, where it was confirmed on appeal that an award of K60,000.00 to a young man who had suffered serious injuries in a motor vehicle accident, rendering one of his legs almost useless, was not excessive. Ms Gelu submits that an appropriate award in the present case would be K60,000.00, and no more. I do not accept that submission. The decisions in Seupain and Namba have not been set aside and I will have regard to them, particularly Namba, in deciding on an award of general damages in this case. Furthermore, the Supreme Court decision referred to by Ms Gelu deals with an award of damages for a motor vehicle accident, which is an entirely different scenario to the circumstances of the present case.

6. There are obvious comparisons between the present case and Namba as the wrongdoer in each case was a policeman, neither plaintiff had done anything to warrant being shot and each plaintiff had to have a leg amputated. However, the plaintiff in the present case deserves a higher award than in Namba for five reasons.

7. Firstly, there was evidence at the trial of his being forced by the police to perform an act of sexual indignity in that before the police shot him, they forced him to suck the penis of another man in full view of the police; there was no evidence of similar degrading treatment in Namba.

8. Secondly, the plaintiff in the present case suffered an additional, permanent injury: his left thumb was shot off by the police, which has led to an even greater degree of physical incapacity. Ms Gelu submitted that no additional damages should be awarded for the thumb injury as there is no evidence of such an injury in Dr Thomas's affidavit, which was the principal affidavit relied on to provide the medical evidence in support of the plaintiff's case. I reject that submission. There was ample evidence at the trial on liability that the plaintiff's thumb had been shot off. This is a self-evident fact. The plaintiff is a disabled man. You only have to look at him to see that he has one leg and one thumb. He has given evidence as to the cause of those injuries, which was accepted in the previous trial.

9. Thirdly, the manner in which the plaintiff was taken to the hospital – it appears that the police simply dumped him there – was more inhumane than in Namba.

10. Fourthly, the plaintiff in the present case has had to endure an above-knee, rather than a below-knee, amputation.

11. Finally, despite shooting the plaintiff without good reason and rendering him permanently disabled the police insisted on charging him with wilful murder, and the criminal proceedings against him continued for three and a half years before he was found not guilty, and it was held that he and his co-accused had been unnecessarily brought before the court to face a very serious charge though there was hardly a shred of evidence against any of them (The State v Thomas Sange, Vincent Kerry, Kito Aso & Steven Kaumu (2005) N2805).

12. As to how much higher the award in the present case should be I again make the comment that this sort of thing is very difficult to quantify. Who is to say that an award of K350,000.00 (the amount claimed) or K500,000.00 or K1 million would be excessive? I would have no difficulty making such awards if a case such as the present one was unprecedented. The plaintiff has endured a life-changing incident and is now permanently and seriously disabled. But this is not an unprecedented case, and I am obliged by the legal doctrine of judicial precedent (also known as stare decisis, recognised in Schedule 2.8(1) of the Constitution) to have close regard to what has been decided by the National Court in past cases and attempt to deal with like cases in like manner. This means that increases in awards should usually be incremental and gradual rather than dramatic and abrupt and perhaps unforeseeable. Having considered all those matters, the points of distinction between this case and Namba warrant an award of general damages of K200,000.00.

SPECIAL DAMAGES

13. The plaintiff claims K990.00, which is said to be return airfares and other transport costs from Kimbe to Lae return to enable him to be fitted with an artificial leg. There is little evidence to go on, but I take judicial notice of the fact that there is in Lae a medical centre for fitting of prosthetic limbs and I find it easy to accept that the plaintiff would have made a trip to Lae for this purpose. The amount claimed is reasonable and I therefore award K990.00.

EXEMPLARY DAMAGES

14. 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.

15. The present case did not involve an unauthorised police operation. It was found as a fact in the judgment on liability that a criminal investigation was being undertaken into the murder of a police officer and that the plaintiff was a suspect, which is borne out by the fact that he was subsequently charged with and tried for wilful murder. The case falls within the first category. 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.

16. 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).

17. In this case judgment has been entered only against the State. The police officer who shot the plaintiff was not named as a defendant. It would not be fair or just to deny the plaintiff exemplary damages for that reason. The Police Force 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 must be penalised for the wilfully unconstitutional actions of its officer. As I said in Namba 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.

18. Ms Gelu submitted that nothing should be awarded for exemplary damages due to defects in the pleadings and the terms of the judgment on liability. I dealt with the defects in the pleadings in that judgment. I remarked that there were problems with the pleadings and the causes of action being relied on by the plaintiff were unclear. But I decided that such matters should not prevent judgment being entered in favour of the plaintiff. I express the same sentiments here. It would be unjust to deny the plaintiff damages on account of procedural irregularities. I will award the same amount as in Namba: K30,000.00.

COMPENSATION UNDER THE CONSTITUTION

19. 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)).

20. The treatment meted out to the plaintiff was horrific. There was no good reason for him to be shot. The State must be held to account for human rights breaches committed by police officers. 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 he was forced to perform an act of sexual indignity in view of the police;
•	when he was shot at;
•	when he was treated inhumanely by being dumped at the hospital.

21. 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 = K200,000.00
•	Special damages = K990.00
•	Exemplary damages = K30,000.00
•	Compensation under the Constitution = K15,000.00
•	Total damages and compensation = K245,990.00.

INTEREST

22. Interest will be awarded at the rate of 8 per cent per annum on the total 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 on which the cause of action accrued, 7 July 2001, to the date of this judgment, a period of 10.82 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 K245,990.00 x 0.08 x 10.82 = K212,928.94.

COSTS

23. 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

24. The court orders that:

(1)	the defendant pay to the plaintiff damages of K245,990.00 plus interest of K212,928.94, being a total judgment sum of K458,918.94; and 

(2)	the defendant shall pay the plaintiff's costs, on a party-party basis, which if not agreed shall be taxed.

Judgment accordingly.

_____________________________
B T Gobu & Associates: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendant