N7074
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 493 OF 1998

BETWEEN
MARK TUNUGU KALE
Plaintiff

AND
KUTUBU IPATA, THOMAS KULARA, GENO AWAI, 
TAIPE HELOI, PETER MAPE, PETER KENNEDY, 
JERRY CHARLES & THE COMMISSIONER OF POLICE
First to Eighth Defendants

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani: Cannings J
2016, 13& 20 May
2018, 31 January 

DAMAGES – assessment of damages for breaches of human rights – liability established after trial – general bodily injury due to Police bashing. 

The plaintiff was unlawfully assaulted by members of the Police Force and suffered general bodily injuries requiring hospitalisation for two weeks. He obtained judgment against the State following a trial on liability. The State was held vicariously liable for breaches of human rights committed against the plaintiff. At the trial on assessment of damages the plaintiff claimed that he was permanently incapacitated due to the assault and claimed damages of approximately K3 million. 

Held:

(1)	The plaintiff’s damages claim is grossly exaggerated as there was no credible evidence that he is permanently incapacitated. 

(2)	The plaintiff was awarded judgment on a human rights enforcement application form, not on a statement of claim, so a number of the categories of damages he claimed were beyond the scope of the judgment on liability and nothing was awarded for them.

(3)	The only categories of damages that fell within the scope of the judgment on liability were general damages, damages for breach of human rights and exemplary damages. 

(4)	The plaintiff was awarded K15,000.00 general damages, K12,000.00 for breaches of human rights and K8,000.00 exemplary damages, a total amount of damages of K35,000.00, plus interest of K13,720,00, being a total judgment sum of K48,720.00. The parties were ordered to bear their own costs. 

Cases cited:

The following cases are cited in the judgment:

Bolisa Figa v Willie Agong (2012) N4707
George Chapok v James Yali (2008) N3474
Gerard Pain v The State (2012) N4708
John Pias v Michael Kodi (2006) N2972
Lance Kolokol v The State (2009) N3571
Losia Mesa v The State (2009) N3681
Mark Tunugu Kale v Kutubu Ipata & 8 Others (2012) N4806
Michael Kondai v Gabriel Saul (2015) N5865
Nathan Kandakasi v The State (2017) N6601
Wakalu, Wale & Haroli v The State (2017) N6600
Wandi Dope v Constable Michael Malai (2012) N4574

ASSESSMENT OF DAMAGES

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

Counsel:

L L Aigilo, for the Plaintiff
T Mileng, for the Ninth Defendant

31st January, 2018

1.	CANNINGS J: This is an assessment of damages for breaches of human rights committed by members of the Police Force against the plaintiff, Mark Tunugu Kale, at Porgera, Enga Province, on 30 June 1998. The plaintiff was unlawfully assaulted and suffered general bodily injuries requiring hospitalisation for two weeks. He obtained judgment against the State after a trial on liability (Mark Tunugu Kale v Kutubu Ipata & 8 Others (2012) N4806). 

SUBMISSIONS 

2.	The plaintiff claims, through his counsel Mr Aigilo, that he should be awarded damages of approximately K3 million. By contrast, it was submitted by Mr Mileng, counsel for the State, that the plaintiff should be awarded nothing due to defects in the pleadings and absence of credible evidence.

DETERMINATION 

3.	I uphold neither of those submissions. The plaintiff’s claim that he has become permanently incapacitated and unable to earn an income due to the assault is not supported by any credible evidence. There is a medical report dated 9 June 2000 (almost two years after the injuries were incurred), which alludes to a problem with hearing loss but there is no evidence that that ailment was caused by the assault on 30 June 1998. That report also refers to medical notes of the plaintiff’s admission to Porgera Health Centre on 30 June 1998, which detail the following symptoms: heavy bleeding to nose and mouth, bruises with swollen left upper-eyelid haematoma, bleeding from right ear with thick blood clots, multiple bruises and abrasions on chest and back, swollen and painful knees, loss of three teeth and grossly deformed facial structure. This evidence is consistent with a severe bashing being meted out to the plaintiff and him suffering pain and anxiety in the short-term. However it does not support the claim that he has become permanently and severely incapacitated. 

4.	The K3 million claim is grossly exaggerated. It is also significant that the plaintiff was awarded judgment on a human rights enforcement application form, which was the originating process. There was no statement of claim. A number of the categories of damages he is now claiming (viz loss of earnings, distress, frustration and humiliation, aggravated damages) are beyond the scope of the judgment on liability and nothing is awarded for them.

5.	The State’s argument that the plaintiff should be awarded nothing is also unrealistic. The plaintiff has secured a judgment on liability. He has proven already that he was unlawfully assaulted and that his human rights were infringed and that he suffered injury. The question now is to determine an appropriate award of damages, having regard to the extent of his injuries. The State has not presented any evidence to rebut the plaintiff’s evidence.

6.	The categories of damages that fall within the scope of the judgment on liability are general damages, damages for breach of human rights and exemplary damages. I will now assess each of those categories of damages. 

GENERAL DAMAGES  

7.	I have compared and contrasted the circumstances of this case and the injuries incurred by this plaintiff 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 
(2006) N2972
	Three Defence Force soldiers unlawfully assaulted the plaintiff in a hotel – he lost 100% sight of one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life.	K60,000.00
	
2	George Chapok v James Yali (2008) N3474 
 	The plaintiff was summoned to a meeting and soon after he entered the room, the defendant punched him to the floor –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 
	The plaintiff was walking with friends near a public road – the Police chased him on suspicion of being involved in an armed robbery – he was caught, assaulted and shot in the leg and foot, causing permanent injury.	K25,000.00
	
4	Losia Mesa v The State (2009) N3681 	The plaintiff was unlawfully assaulted by Police – suffered multiple soft tissue facial injuries and eye injury, leading to blurred vision and reduced visual acuity.	K25,000.00
	
5	Wandi Dope v Michael Malai (2012) N4574 
	The plaintiff was unlawfully assaulted by Police who detained him for six days without charge 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
	
6	Bolisa Figa v Willie Agong (2012) N4707 	The plaintiff was unlawfully assaulted by the defendant and a group of police officers at a police station – he was badly shaken up, suffering a swollen nose and face, blood clots etc– but no life threatening or permanent injuries and he was not hospitalised.	K10,000.00
	
7	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	
8	Wakalu, Wale & Haroli v 
The State 
(2017) N6600	Three plaintiffs were unlawfully assaulted by members of the Police Force and as a result suffered fractured rib cartilage, lost teeth and general abrasions and bruising.	K20,000.00	
9	Nathan Kandakasi v The State (2017) N6601	The plaintiff was unlawfully assaulted by members of the Police Force and as a result permanently lost sight in one eye, lost four teeth and suffered other abrasions and bruising.	K85,000.00	

8.	The present case is more serious than Chapok (K5,000.00) and Figa (K10,000.00) but less serious than Dope (K20,000.00) and most of the other cases referred to. I award the same amount as in Kondai, K15,000.00. 

BREACH OF HUMAN RIGHTS 

9.	In the judgment on liability it was determined that the plaintiff had established a cause of action for breach of four human rights:

•	freedom from inhuman treatment under Section 36(1) of the Constitution;
•	right to full protection of the law under Section 37(1) of the Constitution;
•	right to be treated with humanity and respect for the inherent dignity of the human person under Section 37(17) of the Constitution;
•	freedom from harsh and oppressive acts under Section 41(1) of the Constitution. 

10.	I will take the same approach as in several of the cases referred to in the table, by awarding K3,000.00 for each breach. The amount awarded is K12,000.00.

EXEMPLARY DAMAGES

11.	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.

12.	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 answer in the affirmative. I have considered the amount of K10,000.00 awarded in cases such as Lance Kolokol v The State (2009) N3571 and Gerard Pain v The State (2012) N4708. Comparing this case to those cases, I award K8,000.00. 

INTEREST

13.	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 cause of action accrued (30 June 1998) to the date of this judgment, a period of 19.6 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: K35,000.00 x 0.02 x 19.6 = K13,720.00.

COSTS

14.	The plaintiff has obtained considerably less than what he sought and in these circumstances it is appropriate that the parties bear their own costs. 

ORDER
15.	     The formal Orders of the Court are:

(1)	The ninth defendant is liable to pay to the plaintiff total damages of K35,000.00 plus interest of K13,720.00, being a total judgment sum of K48,720.00. 

(2)	The parties will bear their own costs.

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

Judgment accordingly.
______________________________________________________________
PNG Legal Services: Lawyers for the Plaintiff 
Solicitor-General: Lawyer for the Ninth Defendant