N4745

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 171 0F 1999

JOE KAPE META
ALSO KNOWN AS BENEDICT WAKORE
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

CANNINGS J

Waigani: 21, 22 February 2012
Madang: 16 March 2012
Waigani: 8 June, 20 July 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.

Members 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 for breach of human rights 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 (K175,000.00), special damages (K250.00), exemplary damages (K30,000.00) and compensation for breaches of human rights (K20,000.00), a total claim of K225,250.00.

Held:

(1)	General damages were assessed at K175,000.00. Special damages were assessed at K250.00. 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 K220,250.00. In addition, interest of K257,075.80 is payable, making the total judgment sum K477,325.80.

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
Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Lance Kolokol v The State (2009) N3571
Latham v Henry [1997] PNGLR 435
Peter Kuriti v The State [1994] PNGLR 262
Vincent Kerry v The State (2012) N4658

TRIAL

This was a trial on assessment of damages.

Counsel

B Takin, for the plaintiff
A Samol, for the defendant

20 July, 2012 

1. CANNINGS J: The plaintiff, Joe Kape Meta, has successfully sued the State for breach of human rights by members of the Police Force in an incident near Kimbe, West New Britain, in 1997. He was shot by the police and his right leg was amputated. The case took a long time to be heard for various reasons and judgment was entered against the State following a trial earlier this year. The plaintiff has come back to court for an assessment of damages.

2. The following findings of fact were made in the earlier trial. At 3.00 am on 17 December 1997 a group of about six police officers from Kimbe Police Station arrested the plaintiff at Balabolo village on the Kimbe-Hoskins Highway as he was a suspect in an armed robbery investigation. He was ordered into a police vehicle, and did as he was told, not offering any resistance. Some of the police officers had been drinking alcohol. They questioned him about his involvement in a robbery. The vehicle was driven in the direction of Kimbe and on the way some of the police officers assaulted the plaintiff. At Kumbango Plantation (which is about 9 km from Kimbe) the vehicle was stopped. The plaintiff was ordered out. One of the policemen pointed a police-issued firearm at him. The plaintiff got out of the vehicle and was ordered to run. He was scared and reluctant to run. He begged for mercy but was assaulted and in the process he moved three metres away from the policemen. Four shots were then fired by the police in the direction of the plaintiff. The first shot missed. The second shot struck him in the upper right thigh. The third shot struck him on the right foot, causing him to fall into a roadside drain. By then he was in great pain. The final shot was fired at point-blank range into his right thigh, causing him to lose consciousness.

3. The plaintiff was taken to Kimbe General Hospital, it is not clear by whom or when. He regained consciousness the next day, 18 December 1997. Two days later he was transferred to Nonga Base Hospital, East New Britain, where his right leg was amputated and he remained until discharged on 25 February 1998. Further details of the incident are in the judgment on liability, Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598, which established that the police infringed the plaintiff's human rights in four ways:

•	treating him inhumanely contrary to Section 36(1) (freedom from inhuman treatment) of the Constitution;
•	failing to afford him the full protection of the law and not treating him with humanity and respect for the inherent dignity of the human person contrary to Section 37 (protection of the law) of the Constitution;
•	committing acts against him that were harsh and oppressive and otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind contrary to Section 41 (proscribed acts) of the Constitution;
•	not informing him properly and formally of the reasons for his arrest and detention and of any charge against him and not affording him other rights of a detained person under Section 42 (liberty of the person) of the Constitution.

4. Judgment was entered against the State which was held vicariously liable for the conduct of the police. Judgment was not entered against the two police officers the plaintiff alleged were primarily responsible for the human rights breaches that occurred as the evidence was not sufficiently cogent to warrant a finding of liability against them. Hence they are removed as defendants and the State is the sole defendant.

THE CLAIM

5. The plaintiff is claiming:

•	general damages, K175,000.00;
•	special damages, K250.00;
•	exemplary damages, K30,000.00;
•	compensation for human rights breaches, K20,000.00; being
•	a total of K225,250.00.

GENERAL DAMAGES

6. Ms Samol, for the State, submitted that the claim for K175,000.00 was excessive and not warranted by the pleadings or the evidence. Order 8, Rule 33 of the National Court Rules requires that any claim in respect of personal injuries contain full particulars of 12 matters, including the plaintiff's average weekly earnings during the months previous to the injury and the period employed during those months. Very few of those particulars are provided here, Ms Samol submitted, and there is little evidence to corroborate the claims about the plaintiff's losses.

7. I reject these submissions. Order 8, Rule 33 of the National Court Rules applies (by virtue of Order 8, Rule 1) only to proceedings commenced by writ of summons. These proceedings were commenced by the plaintiff filling out and filing a pro-forma human rights enforcement application form, not by writ of summons, so the rules of pleadings do not apply. As for the evidence, there is little corroboration required in a case such as this. It is not disputed that the plaintiff's leg has been amputated. The plaintiff and his wife have given evidence about the hardships they have endured since the plaintiff was shot. They have four school-age children and life has been tough for them as their father is permanently disabled. The facts speak for themselves.

8. An award of general damages is intended to compensate the plaintiff for the pain and suffering, inconvenience, loss of use of his leg and other losses endured by anyone who suffers this sort of injury. In two recent cases I have assessed general damages for plaintiffs who have had a leg amputated after being unlawfully shot by police. In Jessie Namba v Constable Moses Naru, Commissioner of Police & The State (2011) N3573 the plaintiff was awarded K150,000.00 for a below-knee amputation. In Vincent Kerry v The State (2012) N4658 the plaintiff was awarded K200,000.00 for an above-knee amputation, which is a more serious injury as even with a prosthetic limb, mobility is significantly more impaired than in the case of a below-knee amputation. There were other distinguishing features of Kerry that led to a higher award than in Namba, eg the police forced the plaintiff to perform an act of sexual indignity, the plaintiff suffered an additional, permanent injury as his left thumb was shot off, the manner in which he was taken to hospital was especially inhumane and the police insisted on charging him with wilful murder, despite there being hardly a shred of evidence against him. Having compared this case with Namba and Kerry I accept the submission of Mr Takin, for the plaintiff, that general damages should be more than in Namba, as this is a case of an above-knee amputation, but less than in Kerry as it lacks the aggravating features of that case. The appropriate amount is K175,000.00.

SPECIAL DAMAGES

9. The plaintiff claims K250.00, said to be the cost of wooden crutches, which is not opposed. The amount claimed is reasonable and K250.00 is awarded.

EXEMPLARY DAMAGES

10. 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.

11. 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 an armed robbery and that the plaintiff was a suspect, and that he was arrested and questioned about his involvement in the robbery. The case falls within the first category. Section 12(1) of the Claims By and Against the State Act 1996 must also be considered, 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.

12. 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).

13. In this case judgment has been entered only against the State. Though the police officers who the plaintiff alleges actually shot him were named as defendants, they have since been removed from the proceedings, not because of any doubt that the plaintiff was shot by police officers but doubt about whether it was the two police officers he named who were responsible. Ms Samol submitted that nothing should be awarded for exemplary damages as this would amount to an unfair penalty being imposed on the State as the police officers who shot the plaintiff were acting too far outside their proper scope of duty.

14. I reject that submission. Once a case has reached this stage the plaintiff's interests are more important than those of the State. It would not be fair or just to deny him exemplary damages simply because the police officers who shot him have not been identified by the court or because those officers acted well outside their proper scope of duty. The Police Force and the State have obviously failed in their duty to train and educate the police officers who in fact shot the plaintiff and breached his human rights on proper and acceptable methods of policing. The State must be penalised for the wilfully unconstitutional actions of its officers. I find that the breach of constitutional rights was sufficiently severe to warrant an award of exemplary damages. The same amount as awarded in Namba and Kerry is appropriate: K30,000.00.

COMPENSATION UNDER THE CONSTITUTION

15. As I indicated in Lance Kolokol v The State (2009) N3571 (a police shooting case at Madang where the plaintiff suffered a permanent 20% loss of functionality of one leg) 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 Kolokol, Namba and Kerry I have taken the first approach and I will do so here: compensation for breaches of human rights will be assessed separately from general damages, special damages and exemplary damages.

16. 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 arrested and detained without being informed properly and formally of the reasons for his arrest and afforded other rights under Section 42 of the Constitution;
•	when he was ordered out of the police car and ordered to run, which amounted to inhuman treatment, a denial of the full protection of the law and harsh and oppressive conduct contrary to Sections 36, 37 and 41 of the Constitution;
•	when he was shot, which amounted to inhuman treatment, a denial of the full protection of the law and harsh and oppressive conduct contrary to Sections 36, 37 and 41 of the Constitution.

I will award, as in Kolokol, Namba and Kerry, 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 = K250.00
•	Exemplary damages = K30,000.00
•	Compensation under the Constitution = K15,000.00

•	Total damages and compensation = K220,250.00.

INTEREST
17. 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, 17 December 1997, to the date of this judgment, a period of 14.59 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 K220,250.00 x 0.08 x 14.59 = K257,075.80.

COSTS

18. 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

19. The court orders that:

(1)	the first and second defendants are removed from the proceedings and the third defendant, the Independent State of Papua New Guinea, shall be designated as the defendant.

(2)	the defendant shall pay to the plaintiff damages of K220,250.00 plus interest of K257,075.80, being a total judgment sum of K477,325.80; and

(3)	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: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendant