N5362

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1759 OF 2005

OXY KAIMA & ZARIS KEN
First & Third Plaintiffs

V

CASPER POGA &
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First & Third Defendants

Waigani: Cannings J
2013: 4, 5 June, 9 July, 3 October

DAMAGES – assessment of damages after trial on liability – damages for breach of human rights: full protection of the law; protection against harsh and oppressive acts; freedom from arbitrary search and entry – protection against unjust deprivation of property – exemplary damages

The first and third plaintiffs at an earlier trial established a cause of action for breach of human rights against the first defendant (a member of the Police Force) and the third defendant (the State). The plaintiffs proved that members of the Police Force led by the first defendant raided the first plaintiff's residence and trade store and assaulted and injured them, stole property, forcefully removed them from the residence and detained them in custody without charge. A trial was held to assess damages. Five categories of damages were claimed: (1) unlawful assault: K5,000.000 each; (2) breaches of human rights: K10,000.00 each; (3) business losses: K927,000.80 for the first plaintiff; (4) loss of goods and cash: K6,471.80 for the first plaintiff, K168.00 for the third plaintiff; (5) exemplary damages: K2,000.00 each. The total claims were K951,808.80 for the first plaintiff and K17,168.00 for the third plaintiff.

Held:

(1)	Nothing was awarded in respect of assault as liability was entered in respect of causes of action for breach of human rights, not for the tort of assault or trespass to the person.

(2)	For breaches of human rights the first plaintiff was awarded K10,500.00 and the third plaintiff was awarded K6,000.00.

(3)	Nothing was awarded for business losses as the judgment on liability did not extend to an award of that type of damage and the statement of claim did not seek damages in that category.

(4)	Nothing extra was awarded for loss of goods and cash as compensation for such losses was subsumed within the award of damages for breach of human rights.

(5)	Each plaintiff was awarded K2,000.00 exemplary damages.

(6)	Interest was payable on the total amount of damages.

(7)	The first plaintiff was awarded total damages of K12,500.00 + interest of K7,890.00, being a total judgment sum of K20,390.00. The third plaintiff was awarded total damages of K8,000.00 + interest of K5,049.60, being a total judgment sum of K13,049.60.

Cases cited

The following cases are cited in the judgment:

John Tindaka v David Kambu (2012) N4853
Oxy Kaima v Casper Poga (2012) N4813
Steven Kuefa v George Sunku and The State (2012) N4855

TRIAL

This was a trial on assessment of damages for breach of human rights.

Counsel

J Javapro, for the first and third plaintiffs
N James, for the first and third defendants

3rd October, 2013 

1. CANNINGS J: This is an assessment of damages for breaches of human rights. The first and third plaintiffs, Oxy Kaima and Zaris Ken, succeeded at an earlier trial in establishing liability for human rights breaches against the first defendant, Casper Poga (a police officer) and the third defendant, the State. There were three other plaintiffs but they failed to prove their case, and there was one other defendant, the Commissioner of Police, but liability was not established against him (Oxy Kaima v Casper Poga (2012) N4813).

2. The Court found at the earlier trial that the first defendant led a Police squad that unlawfully raided the residence of the first plaintiff, Mr Kaima, at Kanage Street, Six Mile, in the National Capital District. Mr Kaima, aged in his 50s, was in his trade store, within the area of his residence, at the time. The Police, without a search warrant, entered the store and punched him and beat him with police batons and dragged him out of the store and into a police van, causing him physical injury. The police removed some cash and store goods from the store, and members of the public took advantage of the situation and stole goods from the store. 

3. In the course of the same incident the police assaulted the third plaintiff, Mr Ken, who was sleeping in the house. Mr Ken surrendered to the police but they assaulted him by kicking and gun-butting him and beating him with batons. The police forced Mr Ken and other men including Mr Kaima into a police van and drove to Badili Police Station where they assaulted him again. Mr Ken was detained without charge overnight at Boroko Police Lock-up and then taken to Bomana Jail where he was detained for seven days without charge before being released on bail. Mr Ken lost some personal property during the course of the incident including a radio and clothing. The motive for the actions of the first defendant and the other police officers involved was apparently an altercation between the first defendant and Mr Ken the previous evening.

4. The first and third plaintiffs proved that their human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in four ways:

(a)	right to the full protection of the law (Constitution, Section 37(1));
(b)	protection against harsh or oppressive acts (Constitution, Section 41(1));
(c)	freedom from arbitrary search and entry (Constitution, Section 44); and
(d)	protection against unjust deprivation of property (Constitution, Section 53(1)).

5. It was ordered that the first and third plaintiffs had each established a cause of action for breach of human rights against the first and third defendants in respect of personal injury and property losses caused to them by members of the Police Force at Six Mile, National Capital District on 19 July 2001.

6. At the trial on assessment of damages both the first and third plaintiffs gave oral and affidavit evidence and were subject to cross-examination. The first defendant gave oral evidence in support of the defendants' case, which was that the first and third plaintiffs had not given truthful evidence about the nature of the incident and the extent of their injuries and losses and what had happened to them after they were arrested.

7. The first and third plaintiffs claim five categories of damages: (1) unlawful assault: K5,000.000 each; (2) breaches of human rights: K10,000.00 each; (3) business losses: K927,000.80 for the first plaintiff; (4) loss of goods and cash: K6,471.80 for the first plaintiff, K168.00 for the third plaintiff; (5) exemplary damages: K2,000.00 each. The total claims are K951,808.80 for the first plaintiff and K17,168.00 for the third plaintiff.

1	UNLAWFUL ASSAULT

8. I award nothing for this head of damage as liability was entered in respect of causes of action for breaches of human rights, not for the tort of assault or trespass to the person.

2 	BREACHES OF HUMAN RIGHTS

9. In assessing damages for human rights breaches I have had regard to the assessments in two recent cases. They are similar to this one in that, though it was proven that the rights of the plaintiff had been breached by the police, there was little detailed evidence as to the nature and extent of personal injuries, distress, inconvenience or other losses.

10. In Steven Kuefa v George Sunku and The State (2012) N4855 an armed police squad led by the first defendant entered the plaintiff's house without a warrant, ordered him out at gunpoint, assaulted him and then detained them at a Police Lock-up for 13 days without charge before releasing him. There was no medical evidence of the nature and extent of the plaintiff's injuries. However, it was clear that he was unlawfully assaulted and traumatised. He was awarded K2,000.00 damages in respect of the assault (as it had been pleaded separately from the human rights breaches). As for the three human rights breaches that were pleaded and proven he was awarded K1,000.00 for breach of the right to freedom from inhuman treatment (Constitution, Section 36), K1,000.00 for denial of the full protection of the law as he was denied access to a lawyer and not informed of his constitutional rights (Constitution, Section 37) and K3,250.00 for breach of the right to liberty, for being unlawfully detained for 13 days (Constitution, Section 42). The total amount awarded for human rights breaches was K5,250.00.

11. In John Tindaka v David Kambu (2012) N4853 the plaintiff was unlawfully assaulted by a number of police officers in the course of his arrest. He proved that his human rights were breached, in particular the right to freedom from inhuman treatment (Constitution, Section 36(1)) and the right to the full protection of the law (Constitution, Section 37(1)). The medical evidence was not of high probative value: just one medical report prepared two years and three months after the incident and two years and five months before the trial. He was awarded a total of K5,000.00 damages.

12. Having compared and contrasted the facts of the present case with those in the above cases I assess damages for human rights breaches as follows:

Right 	1st plaintiff	3rd plaintiff	
(a)	full protection of the law	K 2,000.00	K 2,000.00	
(b)	protection against harsh and oppressive acts	3,000.00	3,000.00	
(c)	freedom from arbitrary search and entry	3,000.00	500.00	
(d)	protection against unjust deprivation of property	2,500.00	500.00	
Total	K10,500.00	K6,000.00	

3	BUSINESS LOSSES

13. I award nothing for this head of damage as the judgment on liability did not extend to an award of that type of damage and the statement of claim did not seek damages in that category.

4	LOSS OF GOODS AND CASH

14. I award nothing for this head of damage as compensation for such losses is subsumed within the award of damages for breach of human rights.

5	EXEMPLARY DAMAGES

15. 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.

16. The breach of human (constitutional) rights was both severe and continuous. The facts of the present case are similar to those in Kuefa and Tindaka, where K2,000.00 was awarded. I award K2,000.00 exemplary damages to each plaintiff.

SUMMARY OF DAMAGES ASSESSED

Category	1st plaintiff	3rd plaintiff	
Unlawful assault	K 0	K 0	
Breaches of human rights 	10,500.00	6,000.00	
Business losses	0	0	
Loss of goods and cash	0	0	
Exemplary damages	2,000.00	2,000.00	
Total	K12,500.00	K8,000.00	

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 of filing of the writ, 11 November 2005, to the date of this judgment, a period of 7.89 years, by applying the following formula:

•	D x I x N = A

Where:

•	D is the amount 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:

•	for the first plaintiff: K12,500.00 x 0.08 x 7.89 = K7,890.00; and
•	for the third plaintiff: K8,000.00 x 0.08 x 7.89 = K5,049.60.

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 plaintiffs have repelled the defendants' claim that they be awarded nothing. It is appropriate that they get their costs.

ORDER

(1)	Damages are payable by the first and third defendants to the first plaintiff in the sum of K12,500.00 and to the third plaintiff in the sum of K8,000.00.

(2)	Interest is payable by the first and third defendants to the first plaintiff in the sum of K7,890.00 and to the third plaintiff in the sum of K5,049.60.

(3)	Being a total judgment sum payable by the first and third defendants to the first plaintiff in the sum of K20,390.00 and to the third plaintiff in the sum of K13,049.60.

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

Judgment accordingly.
_______________________________________________

Public Solicitor: Lawyer for the First and Second Plaintiffs
Solicitor-General: Lawyer for the First and Third Defendants