N5363

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 3 OF 2011

BOMAI WATI
Plaintiff

V

DAVID GAVERA
First Defendant

DANIEL OLABE
Second Defendant

GARI BAKI
COMMISSIONER OF POLICE
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J
2013: 30 May, 26 June, 3 October

DAMAGES – assessment after entry of default judgment – limited circumstances in which question of liability can be revisited

DAMAGES – for trespass to the person – detainee shot during attempt to escape from correctional institution

DAMAGES – for breach of human rights – person detained without trial for more than seven years – denial of full protection of the law – denial of right to trial within reasonable time – denial of right to liberty

The plaintiff was arrested and charged with wilful murder and detained in custody for a period of seven years, seven months, three weeks, without being brought to trial, before being discharged by the National Court upon presentation of a nolle prosequi. During that time a police officer shot him in the leg when he attempted to escape, resulting in him being permanently disabled. The plaintiff commenced proceedings claiming damages for trespass to the person and breach of human rights. Liability against the defendants was established by default judgment. A trial was held to assess damages. Three categories of damages were claimed: trespass to the person; breaches of human rights and exemplary damages.

Held:

(1)	When assessing damages after entry of default judgment the issue of liability should only be revisited if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise.

(2)	Here, though some facts seemed difficult to believe, those pleaded were clear, as were the causes of action relied on, so the issue of liability was not reconsidered.

(3)	In view of the permanent and 90% loss of functionality of one leg an appropriate award of general damages for the tort of trespass to the person was K50,000.00.

(4)	The plaintiff was unlawfully detained, in breach of his right to the full protection of the law for a period of 2,786 days and it was appropriate that he be awarded damages in respect of each day of unlawful detention at the rate of K50.00 per day. He was awarded the sum of 2,786 days x K50.00 per day = K139,300.00 for breach of human rights.

(5)	The breach of constitutional (human) rights was so severe and continuous as to warrant an award of exemplary damages at the rate of K10,000.00 per year of unlawful detention. He was awarded the sum of 7.66 years x K10,000.00 per year = K76,600.00 as exemplary damages.

(6)	The total award of damages was thus K50,000.00 + K139,300.00 + K76,600.00 = K265,900.00; and in addition interest was awarded on that sum at the rate of 8% per annum from the date of discharge from custody to the date of judgment (a period of 5.38 years), ie K265,900.00 x 0.08 x 5.38 = K114,443.36, making the total judgment sum K265,900.00 + K114,443.36 = K380,343.36.

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
Application for enforcement of basic rights by Boisen Buo and Ali Buo (2007) N5033
Coecon v National Fisheries Authority (2002) N2182
Jonathan Paru v The State (2012) N4572
Joses Taru v New Ireland Shipping Ltd (2008) N3501
Lance Kolokol v The State (2009) N3571
Latham v Henry [1997] PNGLR 435)
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
Peter Kuriti v The State [1994] PNGLR 262
PNGBC v Jeff Tole (2002) SC694
Re Application by Benetius Gehasa (2005) N2817
Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022
Re Ricky Yanepa [1988-89] PNGLR 166
Rooney v Forest Industries Council of PNG [1990] PNGLR 407
The State v Misin Kinapa (2009) N3814
William Mel v Coleman Pakalia (2005) SC790

TRIAL

This was a trial on assessment of damages for trespass to the person and breach of human rights.

Counsel

E Wurr, for the plaintiff
J Kerenge, for the defendants

3rd October, 2013 

1. CANNINGS J: This is an assessment of damages for the tort of trespass to the person and breaches of human rights.

2. The plaintiff Bomai Wati was charged with wilful murder and detained at Bui'iebi Correctional Institution, Southern Highlands Province, on 25 September 2000. On 18 April 2001 he attempted to escape and was shot in the leg and as a result he is permanently disabled. He remained in custody until 16 May 2008 when he was discharged by the National Court (Makail AJ, as he then was) upon presentation by the Public Prosecutor of a nolle prosequi (a notice of discontinuance of the proceedings). He spent seven years, seven months and three weeks in custody without being brought to trial.

3. On 5 October 2011 he commenced proceedings against the State and three other defendants (members of the Police Force) claiming damages for trespass to the person (in respect of being shot in the leg) and for breaches of his human rights (in particular, the right to the full protection of the law (Constitution, s 37(1)), the right to a fair trial within a reasonable time (s 37(3)) and the right to be brought before a court without delay (s 42(3)(b))).

4. On 27 April 2012 default judgment was entered against all defendants. A trial on assessment of damages has been conducted. The plaintiff seeks damages in three categories: (1) trespass to the person: K50,000.00, (2) breaches of human rights: K1,594,000.00 and (3) exemplary damages: K200,000.00, a total claim of K1,844,000.00.

TRESPASS TO THE PERSON

5. The plaintiff seeks K50,000.00 in respect of the disability he now suffers from as a result of being shot in the leg. Mr Kerenge for the defendants submitted that nothing should be awarded as the actions of the officer were authorised by Section 112 (powers of a correctional officer) of the Correctional Service Act. This provision allows an officer to use a firearm where it is necessary to maintain the custody of a detainee and states that an officer is not liable for injury caused by the use of a firearm in accordance with the section. Mr Kerenge also pointed out that the plaintiff was committing an offence when he attempted to escape so it would set a bad precedent for him to be awarded any damages.

6. These might have been good arguments to make if a defence had been filed (though it is noted that Section 112 applies to correctional officers, whereas the allegation is that the plaintiff was shot by a police officer). However, no defence has been filed, so the defendants have placed themselves in a difficult position. The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 explained the role of the trial judge assessing damages after entry of default judgment in the following terms:

•	the judge should make a cursory inquiry so as 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 the 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.

7. I have made a cursory inquiry and I am satisfied that the facts and the cause of action are pleaded in the statement of claim, not with exemplary precision but with sufficient clarity. It is alleged that the plaintiff was attempting to escape but he was shot by a police officer who used more force than necessary to prevent his escape, thus acting unlawfully. The State is vicariously liable for the officer's unlawful conduct which was committed in the scope of his employment. The question of liability will not be revisited.

8. A recent examination and report by Dr Siwi Wawe, Consultant Surgeon, Port Moresby General Hospital, reveals that the plaintiff has "sustained a combined anatomic, cosmetic and function impairment of 90% of his left lower leg" as a result of a gunshot wound sustained on 18 April 2001. This is a permanent injury in that it is highly unlikely that limb function will be improved if corrective surgery were attempted. The plaintiff requires the use of two crutches for mobility.

9. The plaintiff clearly incurred and continues to suffer from a serious and permanent leg injury, and is entitled to an award of damages to compensate him for the pain and suffering and loss of quality of life that he has endured. In Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807 I awarded K50,000.00 to a man who was unlawfully shot by the police in the course of being apprehended. He suffered a 90% loss of function to one leg due to the gunshot wound. Ms Wurr for the plaintiff relied on Songkae in support of her submission that K50,000.00 should be awarded. There is a very close similarity between the two cases and I see no reason to reject the submission. I award K50,000.00.

HUMAN RIGHTS BREACHES

10. The plaintiff has established by virtue of the default judgment on liability the truth of the fundamental allegations of fact that were pleaded in the statement of claim:

•	he spent seven years, seven months and three weeks in custody without being brought to trial, and furthermore;

•	during that period he was not brought before a court.

11. The latter allegation is very difficult to believe as in 2001 the Mendi District Court committed the plaintiff for trial and it is hard to imagine that that would have been done in the absence of the plaintiff. However, as emphasised above, the National Court can only revisit the question of liability and the findings of fact entailed in the entry of default judgment in limited circumstances, which do not apply here. That is why it is taken as proven that not only was the plaintiff not brought to trial, he was not brought before a court within that very long period.

12. Ms Wurr for the plaintiff submits that the proven facts show that three of the plaintiff's human rights were breached and that he should be compensated by a total award of damages of K1,594,000.00, calculated as follows:

•	breach of the right to freedom from inhuman treatment under Section 36 (freedom from inhuman treatment) of the Constitution: K100,000.00;

•	breach of the right to the full protection of the law under Section 37 (protection of the law) of the Constitution: K100,000.00;

•	breach of the right to liberty under Section 42 (liberty of the person) of the Constitution: K1,394,000.00 (calculated at the rate of K500.00 per day for each day of 2,788 days of unlawful detention).

13. Mr Kerenge submitted that nothing should be awarded as the plaintiff was lawfully detained upon reasonable suspicion of his having committed a very serious offence, there is no constitutional limit to the amount of time that a person spends in custody without trial, the plaintiff failed to exercise his right to bail and his right to complain to the National Court about the lawfulness or reasonableness of his detention and to award any damages would set a bad precedent and encourage anybody who was kept in custody but eventually acquitted to come back to court alleging that their human rights were breached and seeking damages.

14. Most of Mr Kerenge's submissions amount to a challenge to the finding, incorporated within the default judgment, that the defendants are liable for human rights breaches committed against the plaintiff. That challenge, I reject, as the facts and human rights breaches pleaded in the statement of claim are clear and have, with one exception, been accurately summarised by Ms Wurr in her submission. The exception is in relation to the alleged breach of Section 36 of the Constitution, which I do not consider has been adequately pleaded in the statement of claim. I find that the plaintiff has not established that his rights under Section 36 were breached.

15. These are the human rights breaches that I regard as giving rise to an award of damages:

•	right to the full protection of the law;

•	right to be brought to trial within a reasonable time;

•	right to liberty.

1	Breach of the right to the full protection of the law under Section 37(1) (protection of the law) of the Constitution

16. Section 37(1) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

17. The plaintiff was in custody and charged with an offence, so he had the right to be fully protected by the law and it became the duty of every officer of the State and every institution within the criminal justice system dealing with his case to ensure that that protection was fully afforded to him.

18. The plaintiff's right to the full protection of the law and the duty of State officers to ensure that he was fully protected were continually breached by the failure to see that specific rights under other provisions of the Constitution were enforced.

2	Breach of the right to a fair hearing within a reasonable time under Section 37(3) (protection of the law) of the Constitution

19. Section 37(3) states:

A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

20. It is not correct to say (as Mr Kerenge asserted) that the Constitution provides no limit to the length of time a person can spend in custody without being brought to trial. Every person charged with an offence, even those who are on bail, must be brought to trial within a reasonable time after being charged (Re Ricky Yanepa [1988-89] PNGLR 166; Re Application by Benetius Gehasa (2005) N2817). What is reasonable will vary according to the circumstances of each case but some guide is provided by Section 37(14) of the Constitution, which states:

In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

21. As a general rule the trial should commence within four months after the date of committal. Any delay beyond that four-month period will be unreasonable, giving rise, unless the State can provide good reasons justifying the delay, to a breach of the right in Section 37(3) (Application for enforcement of basic rights by Boisen Buo and Ali Buo (2007) N5033; The State v Misin Kinapa (2009) N3814).

22. Here the date of committal is not clear from the evidence. The plaintiff's criminal case was given the file reference CR No 844 of 2001, which means that the date of committal was some day during 2001 and that (because of the number "844") it was a fair way into the year. If it is assumed that the date was a long way into the year, say the last day of the year, 31 December 2001, the four-month period would end on 30 April 2002. Any delay after that is considered unreasonable unless there is a good explanation for it. Here, there is no explanation at all. The delay extended for more than six years before the plaintiff was discharged from custody. This amounted to an extraordinary and gross violation of the plaintiff's right to be brought to trial within a reasonable time.

3	Breach of the right to liberty under Section 42 (liberty of the person) of the Constitution

23. Every person in Papua New Guinea has the right to liberty, which complements the overarching right to freedom based on law, conferred by Section 32(2) (right to freedom) of the Constitution. Section 42(1) says no person shall be deprived of his liberty except in one or more of nine situations prescribed by Sections 42(1)(a) to (i), one of which applies here, paragraph (i), which provides that it may be lawful to deprive a person of his personal liberty "upon reasonable suspicion of his having committed ... an offence".

24. Once a person is lawfully deprived of his liberty, the deprivation of liberty will only remain lawful if all the rights of a detained person conferred by the Constitution are administered to him. In this case it is clear that two of the most important of those rights – those conferred by Section 42(3) – were breached. Section 42(3) states:

A person who is arrested or detained—

(a)	for the purpose of being brought before a court in the execution of an order of a court; or

(b)	upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer.(emphasis added)

25. Section 42(3) confers two rights on a person who is arrested and detained. First, he must be brought before a court "without delay", ie immediately. Secondly he is not to be detained in custody any longer except by a court order (Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022; Jonathan Paru v The State (2012) N4572).

26. In this case the plaintiff was deprived of his liberty, lawfully, on reasonable suspicion of his having committed an offence, on Monday 25 September 2000. Those who detained him were obliged to take him before a court without delay and to ensure that he was not further held in custody except by the order of a court or judicial officer. Both those obligations were breached and the detention of the plaintiff became unlawful on the date of their breach. What was the date? There is a suggestion in the evidence that the plaintiff was arrested in a remote location, so I will allow three days after the date of arrest and declare that the date of breach was 28 September 2000. On 29 September 2000 his detention became unlawful and it remained unlawful until he was taken before the National Court and discharged on 16 May 2008. I find that the plaintiff was unlawfully detained for a period of 2,786 days.

How should damages be assessed?

27. Having identified three distinct human rights breaches the next question is how to assess damages. As I indicated in Lance Kolokol v The State (2009) N3571 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 the various human rights breaches that have occurred. Ms Wurr has quite properly structured her submission in accordance with the first approach. However, I consider that in a case like this, where the different causes of action overlap and merge into a long series of ongoing violations of the plaintiff's human rights, it is more appropriate to award just one global sum, which will be in addition to the award of damages for the separate cause of action of trespass to the person; and it will also be in addition to the separate claim for exemplary damages, which is addressed below.

28. The first breach of human rights – the breach of the right to liberty under Section 42 of the Constitution – occurred on 29 September 2000 and the breach continued for 2,786 days, until 16 May 2008. Another breach of human rights – the right to the full protection of the law – also occurred on 29 September 2000 and continued for the same period. A third distinct breach of human rights – the right under Section 37(3) of the Constitution to be brought to trial within a reasonable time – occurred on 1 May 2002, and it continued for more than six years.

29. In these circumstances I think the best and most convenient way of assessing damages is to award a sum of damages for each of the 2,786 days that the plaintiff's rights were breached, while acknowledging that in respect of the period from 1 May 2002 to 16 May 2008 the extent of the breaches was more serious than in the period from 28 September 2000 to 30 April 2002.

30. Ms Wurr's submission that the plaintiff should be awarded K500.00 for each day he was unlawfully detained is based on my judgment in Songkae in which that sum was awarded to the plaintiffs who were unlawfully detained for 64 days. But each award of damages is driven by the facts of the case. In Songkae the plaintiffs had been shot and denied medical treatment, whereas here there is no allegation of denial of medical treatment.

31. An assessment of damages inevitably involves an exercise of discretion. Though Judges attempt to arrive at an award in as methodical, scientific and objective a manner as possible, ultimately it is a matter of good sense and intuition. Like a Judge imposing a sentence in a criminal case, where you try to fix a sentence that fits the crime, in a human rights case or indeed any civil case involving an award of damages, you try and award a just and appropriate amount. Not too little, as that will not reflect the serious nature of any breach of human rights. And not too much, as the purpose of the exercise is not to penalise the wrongdoer or their employer. Nor is it to be a reward or a windfall gain for the plaintiff. In this case awarding the plaintiff K500.00 per day would be too much. 32. Awarding him nothing, as was Mr Kerenge's submission, would obviously be too little.

33. I am mindful of a part of Mr Kerenge's submissions worthy of consideration: the plaintiff did not apply for bail during all this time and he made no official complaint to the National Court about his lengthy period of detention. He appears to have taken no steps to complain until his plight was discovered on a routine visit to Bui'iebi Jail in September 2007 by a team of Ombudsman Commission investigators. I can't help thinking that someone in the plaintiff's position (there being no suggestion that he was mentally impaired) should have taken some steps, on his own initiative, to enforce his rights. This is not a harsh criticism of the plaintiff and it is not a weighty consideration. But I think the Court is entitled to take the view that the plaintiff took no steps to mitigate his problems. It is a principle of the law of damages (and I see no reason this principle should not apply in human rights cases) that a successful party has a duty to mitigate (lessen the intensity of) his losses. If he fails to do that, the award of damages to which he would otherwise be entitled is reduced (Rooney v Forest Industries Council of PNG [1990] PNGLR 407, PNGBC v Jeff Tole (2002) SC694, Coecon v National Fisheries Authority (2002) N2182; Joses Taru v New Ireland Shipping Ltd (2008) N3501).

34. Weighing all those factors together I will calculate a global sum as general damages for the three human rights breaches at the rate of K50.00 per day for each of the 2,786 days in which one or more breaches occurred: 2,786 days x K50.00 per day = K139,300.00.

EXEMPLARY DAMAGES

35. 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 power by agents of the State. The question to ask is whether the breach of the law by officers of the State is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of the State's 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 officers who breached the law.

36. The present case did not involve an unauthorised police operation or anything akin to it. This was not a case of one or two officers of the State maliciously acting against the plaintiff to see that he was locked up without trial for more than seven years. This was a case of abject negligence by various agencies of the State. Prolonged institutional failure led a man to spending close to eight years in custody in relation to a criminal charge without being brought to trial. The case falls within the first category identified in the Tomba's case. 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.

37. 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).

38. In this case I have decided that judgment should be entered only against the State. Though the police officers who the plaintiff claims were responsible for not bringing him to trial have been named as defendants, I am not satisfied that their interests have been represented in this trial by the counsel for the State; and I am not satisfied that they or the Commissioner of Police who was named as the third defendant were given notice of the trial on assessment of damages or that they were served with the order entering default judgment against them.

39. This is precisely the sort of case meriting an award of exemplary damages. The breach of constitutional (human) rights was both severe and continuous. I will award exemplary damages at the rate of K10,000.00 per year of unlawful detention: K10,000.00 per year x 7.66 years = K76,600.00.

SUMMARY OF DAMAGES ASSESSED

Trespass to the person = K50,000.00
Breach of human rights = K139,300.00
Exemplary damages = K76,600.00
Total = K265,900.00

INTEREST

40. 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 discharge from custody to the date of judgment (a period of 5.38 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 K265,900.00 x 0.08 x 5.38 = K114,443.36.

COSTS

41. 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. In this case the plaintiff has successful repelled the State's claim that he be awarded nothing. It is appropriate that he get his costs.

ORDER

(1)	The fourth defendant shall pay to the plaintiff damages of K265,900.00 plus interest of K114,443.36, being a total judgment sum of K380,343.36.

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

Judgment accordingly.
___________________________________

Public Solicitor: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendants