N6600
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
	
MP (HR) NO 327 OF 2010

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS
UNDER SECTION 57 OF THE CONSTITUTION

IKIPE WAKALU, DAVID WALE & ELAWI HAROLI
Plaintiffs

	V

THE POLICE, SOUTHERN HIGHLANDS PROVINCE
First Defendant

COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani : Cannings J
2014: 28 November, 
2015: 28 August, 
2017: 20 January 

DAMAGES – assessment of damages following entry of default judgment – breaches of human rights – Police brutality – general damages – freedom from inhuman treatment – denial of full protection of the law – right to liberty.

The three plaintiffs were detained by villagers on suspicion that they had committed a crime. The villagers handed over the plaintiffs to the police, who assaulted them and forced them to strip naked, then tied each of them to the bonnets of police vehicles, then paraded them on a public road to the police station, announcing to members of the public that they had caught the criminals and inciting members of the public to further assault them. The police, on arrival at the police station, forced the plaintiffs to stand naked on the bonnets of the police vehicles and to confess publicly that they had committed the crime. The plaintiffs were then detained for three days in the police lock-up, naked and without medical treatment. They were detained a further three days before being taken before a court. On the day that they were taken to court they were again assaulted by police. They were remanded in custody at a correctional institution for a further period of six weeks without charge. They were not told at any stage of their right to see a lawyer. The incident in which they were stripped naked and paraded in public on the bonnets of police vehicles was reported in the media, which led the National Court to commence proceedings on its own initiative under Section 57(1) of the Constitution to enforce the rights of the plaintiffs. The Public Solicitor subsequently represented the plaintiffs in these civil proceedings, the Court directed the plaintiffs to file a statement of claim and the matter proceeded on pleadings, with the defendants represented by the Solicitor-General. The defendants failed to file a defence, default judgment was entered and the matter proceeded to a trial on assessment of damages. 

Held:

(1)	This was a case where compensation for breaches of human rights should be assessed separately from general damages (covering pain and suffering, permanent loss of functionality of various parts of the plaintiffs’ legs, arms, teeth etc).

(2)	General damages were assessed at K20, 000.00 each.

(3)	The plaintiffs’ human rights were breached on nine distinct occasions  and in respect of each occasion, each plaintiff was awarded K3,000.00: 9 x K3,000.00 = K27,000.00. 

(4)	The breach of constitutional rights was so severe or continuous as to warrant an award of exemplary damages, of K10,000.00 each.

(5)	Special damages were not adequately pleaded or proven. Nothing was awarded. 

(6)	The total award of damages was K57,000.00 each. In addition, interest of 6,577.80 is payable, making the total judgment K63,577.80 for each plaintiff, the grand total of damages payable by the third defendant, the State, to all plaintiffs being K190,733.40.

Cases cited:

The following cases are cited in the judgment:

Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421
Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420
Bolisa Figa v Willie Agong (2012) N4707
George Chapok v James Yali (2008) N3474
Gerard Pain v The State (2012) N4708
Jessie Namba v The State (2011) N4396
John Pias v Michael Kodi & Ors (2006) N2972
Lance Kolokol v The State (2009) N3571
Losia Mesa v The State (2009) N3681
Michael Kondai v Gabriel Saul (2015) N5865
PNGBC v Jeff Tole (2002) SC694
Wandi Dope v Constable Michael Malai (2012) N4574
William Mel v Coleman Pakalia (2005) SC790

ASSESSMENT OF DAMAGES

This was an assessment of damages for breaches of human rights.

Counsel:
E Wurr, for the Plaintiffs
G Akia, for the second & third Defendants

20th January, 2017

1.	CANNINGS J: This is an assessment of damages for breaches of human rights committed by members of the Police Force against the plaintiffs in Tari district in mid-2010. Liability has been established by default judgment. 

EVENTS FROM 20 JULY TO 3 SEPTEMBER 2010

2.	On 20 July 2010 the three plaintiffs, Ikipe Wakalu, David Wale and Elawi Haroli, were detained by villagers at Alua Kambe on suspicion that they were involved in an armed robbery of a PMV on the highway at Tari Gap the previous week. The villagers called the police at Tari and when the police arrived handed over the plaintiffs to the police. The police then assaulted the plaintiffs and forced them to strip naked, then tied each of them to the bonnets of police vehicles, then paraded them on the highway to Tari and then around the streets of Tari. The police announced to the public using a loud hailer, that they had caught the criminals, which incited members of the public to further assault the plaintiffs. 

3.	The police, on arrival at Tari police station, forced the plaintiffs to stand naked on the bonnets of the police vehicles and to say that they were “the Commandos of Ambua” and to confess publicly that they had committed the crime. The plaintiffs were then detained for three days in the police lock-up, naked and without medical treatment. They were taken to Tari hospital on 23 July 2010.

4.	On 26 July 2010 the police took the plaintiffs to Mendi and assaulted them further on the way. The plaintiffs appeared before Mendi District Court and were remanded in custody at Bui’iebe Correctional Institution. They remained there until at least 3 September 2010 without charge. They were not told at any stage of their right to see a lawyer. 

5.	The incident in which they were stripped naked and paraded in public on the bonnets of police vehicles was reported on the front page of The National newspaper on Wednesday 21 July 2010. Under a prominent photograph of the first plaintiff, Ikipe Wakalu, who was naked, tied to the bonnet of a vehicle, was the caption:

Stark naked and shamed: Alleged members of a gang who have been terrorising people travelling along the Ambua Gap section of the Highlands Highway between Mendi and Tari in Southern Highlands were captured yesterday and paraded around Tari naked. Members of the public took their anger and frustration out on three of the 19-member gang who were captured, beating them with rocks, sticks and other missiles as they sat naked atop police mobile squad (MS 09) vehicles. One of the gang members, allegedly the leader, was hacked to death 

6.	That report led the National Court to commence proceedings on its own initiative under Section 57(1) of the Constitution to enforce the rights of the plaintiffs. The Public Solicitor subsequently represented the plaintiffs in these civil proceedings, the Court directed the plaintiffs to file a statement of claim and the matter proceeded on pleadings, with the defendants represented by the Solicitor-General. The defendants failed to file a defence, default judgment was entered against the defendants on 13 April 2011 and the matter proceeded to a trial on assessment of damages. 

TRIAL ON ASSESSMENT 

7.	Affidavits by each of the plaintiffs have been admitted into evidence. They depose to the events that took place from 20 July to 3 September 2010 and to medical examinations of their injuries. They were all examined by Dr Michael Dokup, Director of Curative Health Services, at Mt Hagen General Hospital in mid-2011. No evidence has been presented as to what happened after 3 September 2010. It is not known whether the plaintiffs were charged and if they were, whether they were convicted of any offences. No evidence has been presented by the defendants. Members of the Police Force responsible for breaching the plaintiffs’ human rights have not been identified. No issue has been taken about this.

8.	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. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity (William Mel v Coleman Pakalia (2005) SC790). I have made that inquiry and am satisfied that this is an appropriate case for assessment of damages, the cause of action being breach of human rights. 

SUBMISSIONS 

9.	Ms Wurr for the plaintiffs submitted that the plaintiffs should first be awarded a sum of general damages for the pain and suffering they endured, then they should be awarded separate sums for each of nine incidents in which their human rights were breached, then they should be awarded further amounts for exemplary damages and special damages. I uphold that submission and will assess damages in the four categories suggested.

10.	For the plaintiffs it was submitted that the grand total of damages for all plaintiffs should be K457,500.00. For the defendants it was submitted that the grand total for all plaintiffs should be K21,000.00.

1	GENERAL DAMAGES

11.	I have considered the evidence that the plaintiffs were assaulted on three separate occasions: when initially apprehended by the police, when they were taken to Tari and when they were being taken from Tari to Mendi. I have also considered the medical evidence. I have some difficulty with it as there is no evidence to corroborate the claim that all the injuries reported and assessed by Dr Dokup in July 2011 were attributable to the assaults of July 2010. On the other hand, there is no contradictory evidence. 

12.	By way of example, Dr Dokup reports in relation to the first plaintiff, Ikipe Wakalu, that he examined him in July 2011 in relation to injuries allegedly received as a result of police brutality at Tari in July 2010 and was found to have suffered various injuries, giving rise to the following opinion:

1.	Tender rib cage and costal cartilage – fractured cartilage, painful on pressure.
2.	Neck pains with weakness in both shoulder joints – rifle butts used as clubs to beat him.
3.	Loss of canine and pre-molar teeth from the lower left jaw – unable to chew food well, speech (pronunciations) also affected.
4.	Fractured and deviated nasal septum - hit with gun butt on nose. Now experiencing intermittent nasal bleeding.
5.	Weakness in both knees (4/5). 

In my professional opinion he is hereby awarded the following due to his status as a rural subsistence farmer:

1.	20% loss to efficient use of his chest in heavy work – fractured costal cartilage.
2.	10% permanent loss of teeth.
3.	40% loss of effective chewing [of] food – loss of lower left incisor and premolar tooth.
4.	40% loss to effective use of both knees to support loads and walking.
5.	30% loss to effective use of both shoulders to carry loads weighing more than 20 kg.
6.	10% is awarded for mental and psychological stress caused by the trauma endured. This is also awarded for the public disgrace and his social standing in the community.

13.	I disregard the last statement, No 6, as it is not a medical opinion and it is not the role of a doctor, in my view, to give such an opinion in the course of a medical report. However, I accept all of the other facts and opinions expressed by Dr Dokup. Mr Wurr submitted that I should arrive at a separate amount of general damages for each plaintiff, as there are separate reports in relation to each of them. However, in all the circumstances of this case, where there was a long delay between the assaults and the medical examinations, and given that there has been no oral testimony and that the Court has not sighted any of the plaintiffs, I consider that the best approach is to make the same assessment of damages for all plaintiffs.

14.	I now compare and contrast the circumstances of the events in this case and the injuries incurred by these plaintiffs with the circumstances and injuries incurred in other cases in which I have assessed general damages for physical assaults. These include cases in which the cause of action is other than for breach of human rights, such as the tort of trespass to the person. The details are in the following table.

ASSESSMENT OF GENERAL DAMAGES: ASSAULT CASES

No	Case	Details	Amount	
1	John Pias v Michael Kodi & Ors (2006) N2972
Mt Hagen	Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel – he lost the sight of one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life associated with his loss of 100% vision in the right eye.	K60,000.00
	
2	George Chapok v James Yali (2008) N3474 Madang 	The plaintiff was summoned to a meeting at which the defendant, the provincial governor, was present – soon after the plaintiff entered the room, the defendant abused him and punched him to the floor – liability entered for trespass to the person – plaintiff suffered a bloodied nose and facial abrasions – no life threatening or permanent injuries and he was not hospitalised.	K5,000.00
	
3	Lance Kolokol v The State (2009) N3571 Madang	The plaintiff, an innocent man, was walking with friends near a public road – when he saw the police he ran away and was chased on suspicion of being involved in an armed robbery – he was caught, assaulted and shot in the leg and foot, then detained in custody for three days before being taken before a court, which granted him bail.	K25,000.00
	
4	Losia Mesa v The State (2009) N3681 Kimbe	The plaintiff was working in his office at a local-level government when the deputy mayor walked in accompanied by armed police officers – the police officers unlawfully assaulted the plaintiff – also assaulted on arrival at the station – suffered multiple soft tissue facial injuries and eye injury, leading to blurred vision and reduced visual acuity.	K25,000.00
	
5	Jessie Namba v The State (2011) N4396 Madang 	The plaintiff was shot in the leg by the police, for no good reason – he was detained in custody and then taken to hospital and his leg was amputated below the knee.	K150,000.00
	
6	Wandi Dope v Constable Michael Malai (2012) N4574 Madang 	The plaintiff was a victim of human rights breaches committed by police officers who assaulted him when he refused to pay a spot fine for unlawful possession of betel nut – the police detained him for six days without charge, assaulted him and denied him food and medical treatment – suffered permanent damage to the head, mandible, teeth, thighs and knees and post-traumatic stress syndrome.	K20,000.00
	
7	Bolisa Figa v Willie Agong (2012) N4707 Madang 	The plaintiff was unlawfully assaulted by the defendant and a group of police officers at a police station – general damages were awarded for the tort of trespass to the person – the plaintiff was badly shaken up, suffering a swollen nose and face, blood clots, breathing difficulty, painful jaws making eating difficult, sore tongue and gums, painful right and left ribs, painful hip joints and thighs – but no life threatening or permanent injuries and he was not hospitalised.	K10,000.00
	
8	Michael Kondai v Gabriel Saul (2015) N5865	The plaintiff and the defendant had an altercation during the course of which the defendant deliberately rammed the plaintiff with the vehicle he was driving, causing permanent injury to the right shoulder, arm and hand.	K15,000.00	

15.	Having compared and contrasted the present cases with those in the table, I award the plaintiffs K20,000.00 each for general damages. 

2	COMPENSATION FOR HUMAN RIGHTS BREACHES

16.	Ms Wurr submits that the plaintiffs’ human rights were breached in a number of respects by the police on nine separate occasions and that each occasion should attract an award of K8,000.00. Thus K72,000.00 should be awarded to each plaintiff. The nine occasions identified are:

1.	When the police assaulted the plaintiffs immediately after the villagers handed over the plaintiffs to the police.

2.	When the police stripped them naked and tied them to the police vehicles and drove them to Tari police station.

3.	When the police announced to the public that the plaintiffs were criminals, inciting further assaults on the plaintiffs by members of the public.

4.	When the police forced the plaintiffs to stand naked in front of Tari police station and say that they were the “Commandos of Ambua”.

5.	When the police forced the plaintiffs to make public confessions that they had committed the armed robbery at Tari Gap.

6.	When they were not told, in the period from 20 July to 3 September 2010, of their right to see a lawyer and their other rights under Section 42 of the Constitution.

7.	When they were denied clothing and forced to sleep naked in the Tari police lock-up for three days.

8.	When they were denied medical treatment for three days.

9.	When they were further assaulted on 26 July 2010 on the way from Tari to Mendi. 

17.	Ms Wurr submits the plaintiffs’ human rights were on each occasion infringed in four distinct ways:

•	denial of the right to freedom from inhuman treatment (Constitution, s 36(1));  

•	denial of the full protection of the law (Constitution, s 37(1));

•	denial of the right to be treated with humanity and respect for the inherent dignity of the human person (Constitution, s 37(17)). 

•	denial of the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family and a lawyer (Constitution, s 42(2)).

18.	In cases such as this, where human rights breaches are committed in a number of different ways on different occasions and on different days, it can be a difficult task to identify with precision the different actionable wrongs that have been committed and then to allocate a sum of damages in respect of each wrong. There are many ways of identifying the exact human rights breaches in this case, other than the way contended for by Ms Wurr. I don’t intend to explore the other ways as I heard from counsel for the defendants no submission that there is a better or more accurate way to conceptualise what happened. Suffice to say, there was a litany of human rights abuses committed in this shameful series of events. No regard was paid to the presumption of innocence. The plaintiffs were treated like pigs. What happened to them – even if they had committed serious crimes (but that is not known to the court) – was disgraceful.

19.	I uphold the submission that there ought to be an award of damages for each of the nine occasions on which the plaintiffs’ human rights were breached. As to the appropriate amount, I assess the same amount used in the similar cases of Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420 and Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421: K3,000.00. 

20.	The amount awarded is 9 x K3,000.00 = K27,000.00.

3  	EXEMPLARY DAMAGES

21.	The question of whether to award 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.

22.	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 serious case involving a litany of abuse against three individuals. I award the same amount as in Lance Kolokol v The State (2009) N3571 and Gerard Pain v The State (2012) N4708: K10,000.00.

4	SPECIAL DAMAGES

23.	The total sum of K17,500.00 is sought for the three plaintiffs. However, special damages are intended to compensate a plaintiff for some sort of loss or damage incurred that is not presumed by law to have been incurred. It is a special sort of damage that must be expressly pleaded, particularised and proven (PNGBC v Jeff Tole (2002) SC694).

24.	Here, the claims are itemised in the plaintiffs’ affidavits. But these are late claims, supported only by a vague pleading for “special damages” without any particulars at all. I award nothing for special damages.

SUMMARY 

General damages = K20,000.00
Compensation for human rights breaches = K27,000.00
Exemplary damages = K10,000.00
Special damages = 0
Total = K57,000.00 for each plaintiff. 

INTEREST

25.	Interest is awarded at the rate of 2 per cent per annum on the total amount of damages under Section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015. Interest will be calculated in respect of the period from the date on which the default judgment was ordered (13 June 2011) to the date of this judgment, a period of 5.77 years, by applying the formula D x I x N = A, where: D is the amount of damages, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus, K57,000.00 x 0.02 x 5.77 = K6,577.80.

COSTS

26.	As the plaintiffs have been represented by the Public Solicitor and the defendants have been represented by the Solicitor-General, it is appropriate that the parties bear their own costs.

CONCLUSION

27.	Default judgment was ordered against the three named defendants but the first defendant is a rather vaguely described legal non-entity, which has not been legally represented so it is not appropriate that there be an award against it. The second defendant is described as the Commissioner for Police, without any description of the holder of the office, so that is another legal non-entity. The third defendant is the State, which is a legal entity, and should therefore be responsible for satisfying the judgment debt. Liability will therefore be ordered against the State in the sum of K63,577.80 in respect of each plaintiff. 

ORDER

(1)	The third defendant is liable to pay to each of the plaintiffs, Ikipe Wakalu, David Wale and Elawi Haroli, total damages of K57,000.00 plus interest of K6,577.80, being a total judgment sum payable to each plaintiff of K63,577.80; the grand total of damages payable to all plaintiffs being K190,733.80.

(2)	The parties shall pay their own costs. 

(3)	The proceedings are thereby determined and the file is closed. 

Judgment accordingly,
_____________________________________________________________

Public Solicitor	: Lawyer for the Plaintiffs				
Solicitor-General 	: Lawyer for the 2nd & 3rd Defendants