N7195
PAPUA NEW GUINEA
  [IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1388 OF 2014

BETWEEN:
BENSON ARAKO WANGARE
Plaintiff

AND:
CONSTABLE JOHN MAX
First Defendant

COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
    2016:  1 September, 22 December, 
    2018:  28 March 

DAMAGES – breach of human rights – liability established by default judgment – general bodily injuries due to police bashing – unlawful detention.

The plaintiff was unlawfully assaulted by members of the Police Force and suffered general bodily injuries (cuts and abrasions and soft tissue injuries), which did not require hospitalisation and were not life threatening. He was arrested and detained overnight in a police lockup without being charged and without being taken before a court. Default judgment was entered against the member of the Police Force primarily responsible for what happened and the Commissioner of Police and the State. At the trial on assessment of damages the plaintiff sought five categories of damages, totalling K48,490.00. The defendants contended that the plaintiff be awarded K11,835.00.

Held:

(1)	The five categories of damages were assessed as follows: (a) general damages, K10,000.00; (b) unlawful detention, K1,000.00; (c) other human rights breaches, K4,000.00; (d) special damages, K500.00; (e) property losses, K500.00; a total award of K16,000.00. 

(2)	In addition, interest of K1,878.40 is payable, making the total judgment sum K17,878.40. 

Cases cited

The following cases are cited in the judgment:
 
Aquila Kunzie v NCD Police Mobile Squad (2014) N5584
Bolisa Figa v Willie Agong (2012) N4707
George Chapok v James Yali (2008) N3474
Jack Pinda v Sam Inguba & The State (2012) SC1181
Jessie Namba v The State (2011) N4396
Lance Kolokol v The State (2009) N3571
Lina Kewakali v The State (2011) SC1091
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, following entry of default judgment.

Counsel:

S Ao, 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 members of the Police Force, including the first defendant, Constable John Max, against the plaintiff, Benson Arako Wangare, in and following an incident at the Department of Commerce, Waigani, National Capital District on 18 May 2012. Liability was established by default judgment. 

INCIDENT 

2.  As judgment has been entered by default and no application has been made to set aside that judgment, the facts, as pleaded, are regarded as proven (William Mel v Coleman Pakalia (2005) SC790). The plaintiff was assaulted by the first defendant and other policemen when he went to Waigani, in his capacity as treasurer of a landowner company, to collect a government cheque due to the company. At Waigani, he was bashed and then arrested and taken to Six Mile Police Lock-up where he was detained overnight. He was released the next day when news of his plight reached a senior member of the Police Force (a relative of the plaintiff) who went to the police station, and upon being told that the plaintiff had been detained without charge and without being taken before a court, arranged his release. The plaintiff named the member of the Police Force primarily responsible for assaulting, arresting and detaining him as the first defendant, Constable John Max.

SUBMISSIONS 

3.  The plaintiff’s counsel, Mr Ao, submitted that the plaintiff should be awarded five categories of damages: (a) general damages, K20,000.00; (b) unlawful detention, K2,000.00; (c) other human rights breaches, K24,000.00; (d) special damages, K1,925.00; (e) property losses, K565.00; a total of K48,490.00. 

4. Mr Tagu, counsel for the defendants, submitted that the following amounts should be awarded: (a) general damages, K5,000.00; (b) unlawful detention, zero; (c) other human rights breaches, K6,000.00; (d) special damages, K835.00; (e) property losses, zero; a total of K11,835.00. 

(a)	GENERAL DAMAGES

5.   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 similar 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	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
	
2	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
	
3	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
	
4	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
	
5	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
	
6	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	

6.   The case bearing the closest similarity to this case is Bolisa Figa v Willie Agong (2012) N4707. The injuries inflicted on the plaintiff were painful but they were confined to cuts and abrasions and soft tissue injuries. The plaintiff was not hospitalised. I award the plaintiff K10,000.00. 

(b)	UNLAWFUL DETENTION 

7.   The plaintiff spent only one night in custody. I award K1,000.00.

(c)	COMPENSATION FOR OTHER BREACHES OF HUMAN RIGHTS

8.   For each of the other human rights breaches that occurred (besides the unlawful detention) I award K1,000.00. The total is K4,000.00.
 
(d)	SPECIAL DAMAGES 

9.   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). Here, special damages have been adequately pleaded, but not all have been proven. I award K500.00.
 
(e)  	PROPERTY LOSSES 

10.  The plaintiff claims that his mobile phone and a pair of shoes and a handful of other items went missing while he was in custody. It is hard to conclusively prove this sort of claim. But there was no evidence in rebuttal. I award K500.00.  

SUMMARY 

11. The five categories of damages have been assessed as: (a) general damages, K10,000.00; (b) unlawful detention, K1,000.00; (c) other human rights breaches, K4,000.00; (d) special damages, K500.00; (e) property losses, K500.00; a total award of K16,000.00. 

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 causes of action accrued (18 May 2012) to the date of this judgment, a period of 5.87 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: K16,000.00 x 0.02 x 5.87 = K1,878.40.

COSTS

13.  Costs will follow that event. 

ORDER

(1)	The defendants are liable to pay to the plaintiff total damages of K16,000.00 plus interest of K1,878.40, being a total judgment sum of K17,878.40. 

(2)	The defendants 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,

_______________________________________________________
Public Solicitor:     Lawyer for the Plaintiff			 
Solicitor-General:  Lawyer for the Defendants