N5634

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 490 OF 2009

TOM BAMATU
Plaintiff

V

SERGEANT BOLA RIMULA
First Defendant

COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2014: 13 March, 15 May, 19 June

DAMAGES – breach of human rights – assessment after entry of default judgment – arbitrary and unlawful entry of premises – unlawful arrest and detention of plaintiff

The plaintiff, a villager, was working in his garden harvesting rice when the Police entered his land without notice or warrant and arrested him for breaching a court order. They took him to a police lock-up and detained him for ten hours without charge and without taking him before a court. While he was in the lock-up he was assaulted and injured by two detainees. He commenced proceedings against the member of the Police Force who entered his land, arrested and detained him and the Commissioner of Police and the State, claiming damages for breach of human rights. Liability against the defendants was established through default judgment. This was a trial on assessment of damages. Four categories of damages were claimed: general damages (K20,000.00); damages for breach of human rights (K7,000.00); special damages (K2,000.00); and exemplary damages (K10,000.00).

Held:

(1)	General damages were assessed at K3,000.00.

(2)	As the statement of claim pleaded breaches of only two human rights, damages should be awarded in respect of only those two rights: arbitrary entry of land, contrary to the right of freedom of arbitrary search and entry under Constitution, Section 44: K3,000.00; and unlawful detention contrary to the right of liberty of the person under Constitution, Section 42: K1,000.00. Total = K4,000.00.

(3)	Special damages were assessed at K750.00.

(4)	The breach of constitutional (human) rights was so severe and continuous to justify an award of exemplary damages of K3,000.00.

(5)	The total award of damages was K3,000.00 + K4,000.00 + K750.00 + K3,000.00 = K10,750.00. Interest was awarded on that sum of K4,626.80, making the total judgment sum K10,750.00 + K4,626.80 = K15,376.80.

Cases cited

The following cases are cited in the judgment:

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Gerard Pain v The State (2014) N5604
William Mel v Coleman Pakalia (2005) SC790

TRIAL

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

Counsel

B B Wak, for the plaintiff
S Phannaphen, for the defendants

19th June, 2014

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

2. The plaintiff, a villager, was working in his garden near Kalogom village in the North Ambenob area of Madang Province, harvesting rice, on the morning of Wednesday 25 March 2009. A Police squad entered his land without notice or warrant and arrested him for breaching a court order. The officer in charge of the Police operation was the first defendant, Sgt Bola Rimula. They took him to the Jomba Police Lock-up in Madang town and detained him there for ten hours without charge and without taking him before a court. While he was in the Lock-up he was assaulted and injured by two detainees. When the police released him at 9.00 pm the same day, they told him he had to attend the District Court the next day. He did so but his name was not called. He attended the District Court on ten subsequent occasions but his name was never called or listed.

3. On 1 May 2009 he commenced proceedings by writ of summons against Sgt Rimula and two other defendants, the Commissioner of Police and the State, claiming damages for breach of two human rights:

•	freedom from arbitrary search and entry under Section 44 of the Constitution (which generally provides that "no person shall be subjected to the search of his person or property or to entry of his premises" except in accordance with law); and

•	right to liberty under Section 42 of the Constitution (which generally provides that "no person shall be deprived of his personal liberty" except in accordance with law).

4. The Solicitor-General filed a notice of intention to defend on behalf of the defendants but failed to file a defence. Default judgment was ordered on 18 December 2010.

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. Here, the facts pleaded were clear, as were the causes of action relied on, so the issue of liability has not been reconsidered.

7. The plaintiff seeks four categories of damages:

1	general damages: K20,000.00;
2	damages for breach of human rights: K7,000.00;
3	special damages: K2,000.00; and
4	exemplary damages: K10,000.00.

1	GENERAL DAMAGES

8. I uphold the submission of Mr Wak for the plaintiff that in addition to awards of damages in respect of the specific human rights breaches that occurred and the awards for special damages and exemplary damages, this is a case that warrants an award of general damages.

9. That was the approach I took in the recent case of Gerard Pain v The State (2014) N5604, a case in which the plaintiff, an innocent man, was shot in the back by a police officer and hospitalised for 11 days. He succeeded at a trial in establishing liability against the State for breaches of four human rights: freedom from inhuman treatment, full protection of the law, protection from proscribed acts and protection of freedom of movement. He was awarded K20,000.00 general damages for pain and suffering and inconvenience, K5,000.00 in respect of each of the four human rights breaches and exemplary damages of K10,000.00.

10. Comparing the facts of that case with those of the present case, it can be seen that the pain, suffering and inconvenience incurred by Mr Pain were of a higher degree than that incurred by the present plaintiff, Mr Bamatu, so Mr Bamatu will be awarded less than K20,000.00.

11. Mr Phannaphen for the State submitted that nothing should be awarded in respect of general damages as the plaintiff was not assaulted by the Police. He was assaulted by two detainees in the Police Lock-up and none of the defendants should be vicariously liable for their conduct. I reject that submission for two reasons. First it is an attempt to revisit the issue of liability, which has already been determined by entry of default judgment. Secondly, it was the unlawful conduct of the first defendant, Sgt Rimula, that put the plaintiff in the Police Lock-up and therefore put him at risk of being assaulted. The defendants are properly regarded as being liable for what happened to the plaintiff as a result of the unlawful conduct. I award the plaintiff general damages of K3,000.00.

2	COMPENSATION FOR HUMAN RIGHTS BREACHES

12. Mr Wak submitted that the plaintiff should be awarded K3,000.00 for being denied the right to the full protection of the law under Section 37 of the Constitution, K3,000.00 for breach of the right to freedom from arbitrary search and entry under Section 44 of the Constitution and K1,000.00 for breach of the right to liberty under Section 42 of the Constitution, a total of K7,000.00. Mr Phannaphen conceded that the Section 44 and Section 42 claims were reasonable but pointed out that there was no claim in respect of any alleged breach of Section 37 of the Constitution.

13. Mr Phannaphen has made a valid point. Section 37 is not pleaded in the statement of claim. It is therefore not appropriate to award damages in respect of the alleged breach of Section 37. I award the amounts claimed in respect of Section 44 (K3,000.00) and Section 42 (K1,000.00). The total is K4,000.00.

3	SPECIAL DAMAGES

14. I agree with Mr Phannaphen that there is insufficient evidence to support the claim of K2,000.00. I award K750.00.

4	EXEMPLARY DAMAGES

15. Mr Wak submitted that K10,000.00 should be awarded against the first defendant as he was the party which actually and directly committed the human rights breaches which resulted in the plaintiff being unlawfully arrested and detained and being assaulted, injured and traumatised by these events.

16. Mr Phannaphen's response was to assert that the question of what amount of exemplary damages to award against the first defendant was a matter for the Court to decide. He had no submission on the point as the Solicitor-General only represents the second and third defendants.

17. I do not accept that the Solicitor-General does not represent the first defendant. The notice of intention to defend indicates that the Solicitor-General represents all three defendants. I acknowledge that at the start of the trial Mr Phannaphen entered an appearance for only the second and third defendants. However, as there has been no amendment to the notice of intention to defend, the Solicitor-General is bound by its terms and must be regarded as the lawyer on the record for all defendants.

18. 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.

19. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? I have no hesitation in answering this question in the affirmative. This was a very severe breach of human rights. The Police, led by the first defendant, unlawfully entered the plaintiff's land for no proper reason, arrested him, and then unlawfully deprived him of his liberty, putting him at risk of assault, a risk that materialised, resulting in him being assaulted and injured. He clearly deserves exemplary damages. I have 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). However, with respect, I am not bound to take that approach. I decline to make only the first defendant liable for the award as that would make it too difficult for the plaintiff to recover the amount to which he is entitled.

20. Comparing this case with Pain where the breach of rights was more severe and continuous than in this case, I award exemplary damages of K3,000.00.

SUMMARY OF DAMAGES ASSESSED

1	general damages: K3,000.00;
2	damages for breach of human rights: K4,000.00;
3	special damages: K750.00; and
4	exemplary damages: K3,000.00.

Total = K10,750.00.

INTEREST

21. 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 incident to the date of judgment (a period of 5.38 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 K10,750.00 x 0.08 x 5.38 = K4,626.80.

COSTS

22. 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. There is no reason in this case to depart from that rule.

ORDER

(1)	The defendants shall pay to the plaintiff damages of K10,750.00 plus interest of K4,626.80, being a total judgment sum of K15,376.80.

(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: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants