N5700
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 393 OF 2010

BETWEEN:

RAMBO SAA
Plaintiff

AND

JEFFERY YARRA, FIRST CONSTABLE
First Defendant

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

MATHEW BINE, GAOL COMMANDER, BOMANA
Third Defendant

RICHARD SIKANI, COMMISSIONER OF THE CORRECTIONAL SERVICE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Cannings J
2014: 22, 28, 30, 31 July

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

DAMAGES – general damages claimed for malicious prosecution, assault, breaches of human rights – special damages – exemplary damages. 

The plaintiff claimed that he was arrested and detained without good cause, subject to inhuman treatment while in Police custody, assaulted and was the victim of a malicious prosecution. Liability against the defendants was established through a default judgment. This was a trial held to assess damages. Three categories of damages were claimed: (1) general damages for malicious prosecution (K20, 000.00), assault (K2, 000.00) and breach of constitutional (human) rights (K20, 000.00); (2) special damages (K750.00); and (3) exemplary damages (K20, 000.00). The defendants argued that no damages should be awarded due to the elements of the various causes of action not being proven and the vagueness of the evidence and the lack of corroboration.

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. Here, the issue of liability was not revisited.

(2)	General damages were assessed, in respect of: malicious prosecution (K2, 000.00), assault (K2, 000.00) and breach of human rights (K6, 000.00), being a total award of general damages of K10, 000.00.

(3)	The claim for special damages was vague and unsupported by the evidence. Nothing was awarded.

(4)	The breach of human rights was severe and continuous as to warrant an award of exemplary damages of K2, 000.00.

(5)	The total award of damages was thus K10, 000.00 + 0 + K2, 000.00 = K12, 000.00; and in addition interest was awarded on that sum at the rate of 8% per annum from the date of filing of the writ, 20 April 2010, to the date of judgment, 31 July 2014, a period of 4.28 years, ie K12, 000.00 x 0.08 x 4.28 = K4, 108.80, making the total judgment sum K12, 000.00 + K6, 163.20 = K16, 108.80.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Alphonse Kopi v The State [1994] PNGLR 475
Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421
Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420
Gerard Pain v The State (2014) N5604
Helen Jimmy v Paul Rookes (2012) N4705
Lance Kolokol v The State (2009) N3571
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Re Fisherman's Island [1979] PNGLR 202
Regina v Holland [1974] PNGLR 7
Steven Kuefa v George Sunku (2012) N4855
Teine Molomb v The State (2005) N2861
William Mel v Coleman Pakalia (2005) SC790

TRIAL

This was a trial on assessment of damages for malicious prosecution, assault and breach of human rights.

Counsel:

J Kolkia, for the plaintiff
A Samol, for the second, third, fourth & fifth defendants

31st July, 2014

1. CANNINGS J: This is an assessment of damages for malicious prosecution, assault and breach of human rights following entry of default judgment.

2. The plaintiff, Rambo Saa, was arrested by the Police at his home at Gerehu, National Capital District, on 14 December 2008. He was suspected of being involved in an armed robbery and the Police were acting on a complaint by a victim of the robbery. The plaintiff was then 18 years of age. He was detained at the Boroko Police Lock-up on that day and then transferred to Bomana Correctional Institution on 17 December 2008. He was detained there until 22 January 2009. The plaintiff claims that in the period of a little over a month that he was in custody, he was assaulted by the Police, denied medical treatment, forced to stay in inhuman and degrading conditions, denied access to a lawyer, not afforded his rights as a detained person and maliciously prosecuted. 

3. On 20 April 2010 he commenced proceedings by writ of summons against First Constable Jeffery Yarra (who is alleged to be the member of the Police Force primarily responsible for the plaintiff's mistreatment) and other defendants, including the State, claiming damages for malicious prosecution, assault and breach of human rights. 

4. The Solicitor-General filed a notice of intention to defend on behalf of the second, third, fourth & fifth defendants but failed to file a defence. Default judgment was ordered on 27 April 2012.

EFFECT OF DEFAULT JUDGMENT 

5. The effect of the default judgment is that the facts and causes of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make an assessment of damages a futile exercise (William Mel v Coleman Pakalia (2005) SC790). 

6. Ms Samol, who appeared for the second, third, fourth & fifth defendants, submitted that many of the facts and causes of action pleaded were not clear, so the issue of liability should be reconsidered. 

7. I reject that submission. The statement of claim is rather well pleaded, in my view, so the assessment of damages will be carried out on the basis that three separate causes of action have been established: 

•	malicious prosecution (a tort), 

•	assault (a tort) and 

•	breaches of human rights (three separate human rights breaches have been established: unlawful arrest and detention (Constitution, s 42(1)), inhuman treatment (Constitution, s 36(1)) and denial of full protection of the law (Constitution, ss 37(1), (3), and 4(b) and 42(2))).

CLAIMS FOR DAMAGES 

8. The plaintiff seeks three categories of damages: 

(1)	general damages for malicious prosecution (K20,000.00), assault (K2,000.00) and breach of constitutional (human) rights (K20,000.00), a total of K42,000.00;

(2)	 special damages (K750.00); and 

(3)	 exemplary damages (K20,000.00). 

9. The defendants argued that no damages should be awarded due to the elements of the various causes of action not being proven and the vagueness of the evidence and the lack of corroboration.

1	GENERAL DAMAGES

(a)	Malicious prosecution 

10. The claim for malicious prosecution is based on the fact that two days after arresting and detaining the plaintiff, the Police were advised by the complainant (the victim of the armed robbery) that they had the wrong man. The plaintiff was not the correct suspect. Nevertheless the Police continued to deal with and detain the plaintiff. 

11. As for an appropriate award of damages to compensate the plaintiff, I have compared the facts of this case with those in Teine Molomb v The State (2005) N2861, where the plaintiff was awarded K9, 000.00. I consider that the degree of inconvenience and injury to the present plaintiff's reputation was not as severe in this case as it was in Molomb. I award K2, 000.00. 

(b)	Assault

12. The plaintiff has given evidence that he was assaulted by the Police before being detained at Boroko Police Lock-up and he was denied medical treatment. His wounds healed with the effluxion of time. Ms Samol submitted that like all of the allegations made by the plaintiff there is no evidence to corroborate what the plaintiff has deposed to, and therefore he should be awarded nothing.

13. I do not think that that is a proper or reasonable approach to take. The plaintiff has sworn an affidavit that has been admitted into evidence and he has given oral testimony and been subject to cross-examination. So there is evidence before the court to support the claim for damages in respect of the tort of assault. The defendants have presented no evidence at all. I uphold the submission of Mr Kolkia for the plaintiff that the absence of any evidence by the defendants is a special consideration that needs to be taken into account in a case such as this, where all the events and allegations of fact arose in the National Capital District – not in a remote location. If this case had been based on what happened in a remote location there might be some justifiable difficulty for the defendants in being able to locate Police witnesses who would be able to give evidence challenging the plaintiff's version of events. That is not the case, however. All the witnesses should be available locally; and if they have not been available it was incumbent on the defendants to give evidence explaining their practical difficulty. The defendants have had many opportunities to gather evidence and present it to the Court. No reason has been put forward to reject the plaintiff's evidence. 

14. The approach to the task of determining disputed facts in such situations was explained by Wilson J in Re Fisherman's Island [1979] PNGLR 202:

Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could accept it. If for any reason which recommends itself to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness before the court or judicial tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it.

15. The same principle was outlined by the Full Court of the pre-Independence Supreme Court in Regina v Holland [1974] PNGLR 7 and more recently by Woods J in Alphonse Kopi v The State [1994] PNGLR 475, by Lay J in Rabaul Shipping Limited v Peter Aisi (2006) N3173 and by Cannings J in Helen Jimmy v Paul Rookes (2012) N4705. That is the approach I will take to evidentiary matters in this case. What the plaintiff has testified does not appear to be an unbelievable or outlandish version of events. It is therefore accepted. I find that the plaintiff was unlawfully assaulted and injured by the Police. The injuries were largely superficial. I award K2, 000.00 damages.

(c)	Breach of human rights 

16. Three separate categories of human rights breaches have been established by the entry of default judgment

•	unlawful arrest and detention (Constitution, s 42(1)), 

•	inhuman treatment (Constitution, s 36(1)) and 

•	denial of full protection of the law (Constitution, ss 37(1), (3), and 4(b) and 42(2)).

17. I have assessed damages for each category of breaches of human rights by comparing the facts of this case with other recent cases involving assessment of damages in respect of human rights breaches committed by members of the Police Force: Lance Kolokol v The State (2009) N3571, Steven Kuefa v George Sunku (2012) N4855, Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420, Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421 and Gerard Pain v The State (2014) N5604.

18. The amount I award is K2, 000.00 for each of the three categories, a total of K6, 000.00

Summary of general damages

19. The total amount of general damages is: K2, 000.00 (malicious prosecution) + K2, 000.00 (assault) + K6, 000.00 (human rights breaches) = K10, 000.00. 

2	SPECIAL DAMAGES

20. I agree with Ms Samol that the claim for special damages is vague and unsupported by the evidence. Nothing is awarded.

3	EXEMPLARY DAMAGES

21. 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.

22. The present case did not involve an unauthorised police operation. A criminal investigation was undertaken into an armed robbery. The plaintiff was a suspect. He was arrested, detained and questioned about his involvement in the robbery. The case falls within the first category. The merits of the claim for exemplary damages must be considered in light of 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.

23. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? Clearly, yes. The plaintiff was arrested and detained without good reason and he spent over a month in custody unnecessarily. Three sorts of human rights breaches were committed against him. Comparing this case with Pain where the breach of rights was more severe and continuous than in this case, I award exemplary damages of K2, 000.00.

SUMMARY OF DAMAGES ASSESSED

1	general damages: K10,000.00;
2	special damages: 0; and
3	Exemplary damages: K2, 000.00.

Total = K12, 000.00.

INTEREST AND COSTS

24. 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 the of filing of the writ, 20 April 2010, to the date of judgment, 31 July 2014, a period of 4.28 years, by applying the 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 K12, 000.00 x 0.08 x 4.28 = K4, 108.80.

25. Costs will follow the event. 

ORDER

1	The defendants shall pay to the plaintiff damages of K12, 000.00 plus interest of K4, 108.80, being a total judgment sum of K16, 108.80.

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

Judgment accordingly
____________________________________________________________

Kunai & Co Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants