N7177
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 46 OF 2015

WALLEN AWAPARU
Plaintiff

V

COMMISSIONER OF POLICE 
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2016: 25 November, 20 December 
2018: 28 March 

DAMAGES – assessment of damages for breaches of human rights – liability established after trial – permanent eye injury, 100% loss of vision in one eye due to police shooting. 

The plaintiff was shot in the eye by a member of the Police Force and suffered a permanent loss of vision in that eye. 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 by the unidentified member of the Police Force who shot indiscriminately into a group of people containing the plaintiff. At the trial on assessment of damages the plaintiff sought three categories of damages: general damages, K150,000.00, economic loss, K83,200.00, and exemplary damages, K10,000.00, a total of K243,200.00. The State did not offer any alternative awards, instead arguing that the question of liability ought to be revisited and the proceedings dismissed due to the plaintiff’s failure to prove the identity of the person who fired the shot and to prove that the State was vicariously liable and to prove that he had actually lost sight in his eye.  

Held:

(1)	The State’s attempt to revisit liability was misconceived as liability had been established after a trial, not by default judgment, so the only avenues by which the question of liability could legitimately be revisited were by making a slip rule application to the National Court or appealing to the Supreme Court. Neither avenue was taken so the application to revisit the issue of liability was dismissed.

(2)	The plaintiff was awarded K80,000.00 general damages, nothing for economic loss and K10,000.00 exemplary damages, a total of K90,000.00, plus interest of K7,272.00, being a total judgment sum of K97,272.00, plus costs. 

Cases cited

The following cases are cited in the judgment:

Andrew Tony v The State (2008) N3477
Gerard Pain v The State (2012) N4708
John Pias v Michael Kodi (2006) N2972
Lance Kolokol v The State (2009) N3571
Mark Tunugu Kale v Kutubu Ipata & The State (2018) N7074
Nathan Kandakasi v The State (2017) N6601

ASSESSMENT OF DAMAGES

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

Counsel

M Pokia, for the plaintiff
E Tagu, for the defendants 

28th March, 2018 

1.	CANNINGS J: This is an assessment of damages for breaches of human rights committed by a member of the Police Force against the plaintiff, Wallen Awaparu, at Two Mile, National Capital District, on the morning of 15 March 2014. 

2.	The plaintiff was a resident of Two Mile Hill settlement. He was woken at 5.00 am by a loud noise and sounds of a commotion on the nearby Sir Hubert Murray Highway. He went with a number of others to investigate. He discovered that it was an ethnic clash between people from Enga Province and people from Goilala District, Central Province. The plaintiff is from Eastern Highlands Province so he did not get involved in the clash. A police squad arrived on the scene in two 10-seater Toyota Landcruiser motor vehicles. The police calmed down the situation and they were talking to the combatants. The plaintiff moved closer to hear what was being said. Then another police vehicle arrived. Shots were suddenly fired from that vehicle in the direction of the group of bystanders including the plaintiff. The plaintiff was shot in the left eye. He went to Port Moresby General Hospital for treatment. His treatment continued over several months. He suffered a permanent loss of vision in that eye. He obtained judgment against the State following a trial on liability. 

3.	The second defendant, the State, was held vicariously liable for breaches of human rights committed against the plaintiff by the unidentified member of the Police Force who shot indiscriminately into the group of people containing the plaintiff. It was found that three of the plaintiff’s human rights were breached:

•	the right to the full protection of the law (Constitution, Section 37(1));

•	the right of protection against harsh and oppressive and other proscribed acts (Constitution, Section 41(1)); and

•	the right to freedom of peaceful assembly (Constitution, Section 47).

SUBMISSIONS 

4.	The plaintiff claims, through his counsel Mr Pokia, that he should be awarded three categories of damages: general damages of K150,000.00, economic loss of K83,200.00 and exemplary damages of K10,000.00, a total of K243,200.00. 

5.	Mr Tagu, for the State, did not offer any alternative awards, instead arguing that the question of liability ought to be revisited and the proceedings dismissed due to the plaintiff’s failure to prove the identity of the person who fired the shot and to prove that the State was vicariously liable and to prove that he had actually lost sight in his eye.  

THE STATE’S DISMISSAL ARGUMENT 

6.	I deal first with the State’s argument that nothing should be awarded and the proceedings dismissed. This attempt to revisit the question of liability is misconceived. Liability was established after a trial, not by default judgment, so the only avenues by which the question of liability can legitimately be revisited are by the State making a slip rule application to the National Court or by the State appealing to the Supreme Court against the judgment on liability. Neither avenue was taken so the application to revisit the issue of liability must be dismissed. I will now assess each of the categories of damages claimed. 

GENERAL DAMAGES  

7.	There is ample medical evidence to prove that the plaintiff suffered a permanent 100% loss of vision in the left eye and a 33% loss of binocular vision. I have compared and contrasted the circumstances of this case with the circumstances and injuries incurred in three comparable cases decided in the last 12 years. The details are in the following table.

GENERAL DAMAGES: PERMANENT LOSS OF VISION IN ONE EYE
No	Case	Details	Amount	
1	John Pias v 
Michael Kodi 
(2006) N2972,
Cannings J	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	Andrew Tony v 
The State 
(2008) N3477,
Makail J	The plaintiff was injured due to negligent construction of a footbridge – he lost 100% vision in one eye – general damages were assessed as representing the pain and suffering and loss of amenities of life.	K50,000.00
	
3	Nathan Kandakasi v The State 
(2017) N6601, Cannings J	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 slightly less serious than Kandakasi (K85,000.00). I will use that case as the reference point, as it was decided a number of years after the others and took the previous cases into account. I award the sum of K80,000.00. 

ECONOMIC LOSS

9.	It is 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. There were no pleadings, as such. The claim for economic loss is beyond the scope of the judgment on liability. I dealt with a similar scenario in the recent case of Mark Tunugu Kale v Kutubu Ipata & The State (2018) N7074, where I awarded nothing for economic loss. I take the same approach. Nothing is awarded.  

EXEMPLARY DAMAGES

10.	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.

11.	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 with those cases, I award K10,000.00. 

INTEREST

12.	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 (15 March 2014) to the date of this judgment, a period of 4.04 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 number of years and A is the amount of interest: K90,000.00 x 0.02 x 4.04 = K7,272,00.

COSTS

13.	The plaintiff has obtained less than what he sought but has succeeded overall. The State’s submissions at the trial on assessment were misconceived and unhelpful. The plaintiff deserves his costs.  

ORDER

(1)	The second defendant is liable to pay to the plaintiff total damages of K90,000.00 plus interest of K7,272.00, being a total judgment sum of K97,272.00. 

(2)	Subject to any specific costs order made in the course of the proceedings, the second defendant shall pay the plaintiff’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

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

Judgment accordingly.
_____________________________________________________________
Mirupasi Lawyers:    Lawyers for the Plaintiff		 
Solicitor-General: 	   Lawyer for the Defendants