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Gaian v Yawing [2018] PGNC 27; N7099 (9 February 2018)

N7099

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 18 OF 2015

PETER GAIAN FOR HIMSELF AND ON BEHALF OF THE VILLAGERS OF BAGILDIG VILLAGE, SUMKAR DISTRICT
First Plaintiffs

WESLEY DON FOR HIMSELF AND ON BEHALF OF THE VILLAGERS OF SILDIG VILLAGE, SUMKAR DISTRICT
Second Plaintiffs

V

SENIOR CONSTABLE ADAM YAWING
First Defendant

CHIEF INSPECTOR ANTHONY WAGAMBIE JUNIOR
Second Defendant

THE COMMISSIONER OF POLICE
Third Defendant

BERNARD LANGE, MADANG PROVINCIAL ADMINISTRATOR
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang: Cannings J
2017: 1 March, 4 April, 1 May, 20 July, 1, 14 August
2018: 9 February

DAMAGES – breach of human rights – negligence – Police raid of rural villages – property damage – assault.

The plaintiffs sued the defendants (various members of the Police Force and the provincial administrator and the State) in connection with Police raids of two villages alleged to be harbouring suspects implicated in a crime that had been committed nearby. The causes of action pleaded in the statement of claim were breaches of human rights and the torts of trespass, assault, battery and negligence. Default judgment was entered against all defendants. At the trial on assessment of damages, 87 plaintiffs gave evidence and sought damages for themselves and their family members, being 123 adults and 132 children. Damages were sought in four categories: (a) general damages for pain and suffering, distress etc, totalling K8,790,000.00; (b) property losses, totalling K3,696,450.00; (c) breach of human rights totalling K3,540,000.00; and (d) exemplary damages totalling K1,494,000.00, a grand total of K17,520,450.00. In response, the defendants adduced no evidence, and the provincial administrator did not appear at the trial. Those defendants that did appear (the Police and the State) argued that the question of liability should be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim; and in the alternative that 70 of the plaintiffs (those who had signed an authority to act form and given evidence) should be awarded no more than K5,000.00 each, a total of K350,000.00, due to a lack of evidence to support the claims.

Held:

(1) The State’s preliminary arguments were rejected as they were made late, without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner and supported by affidavit. In any event the statement of claim was clearly drafted and adequately pleaded causes of action in breach of human rights and various torts. The Court proceeded to assess damages on the basis of the evidence before it.

(2) It was appropriate to award damages to each plaintiff who had given evidence, including those in respect of whom the defendants argued that there was no authority to act form (as that was an issue relevant to liability, and was foreclosed by entry of default judgment). Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that the police raids, unsupported by the order or warrant of any Court, took place in the manner alleged, involving destruction of property, fear and distress and bodily assault on some plaintiffs.

(3) Damages were awarded to each plaintiff who gave evidence in the following amounts: (a) general damages for pain and suffering, distress etc, K20,000.00 each, totalling K1,740,000.00; (b) property losses, each claim was discounted by 80% to arrive at an appropriate assessment, totalling K739,290.00; (c) breach of human rights, K5,000.00 each, totalling K435,000.00; (d) exemplary damages, K5,000.00 each, totalling K435,000.00, a total of K3,349,290.00. In addition each plaintiff was awarded interest on the amount of damages awarded, totalling K167,464.50. The total judgment sum was K3,349,290.00 damages + K167,464.50 = K3,516,754.50.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kolaip Palapi v Sergeant Poko (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Peter Wanis v Fred Sikiot and The State (1995) N1350
Philip Nare v The State (2017) SC1584
William Mel v Coleman Pakalia (2005) SC790
Yange Lagan v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages following entry of default judgment.

Counsel

G Pipike, for the Plaintiffs
B B Wak, for the First, Second, Third & Fifth Defendants

9^th February, 2018

1. CANNINGS J: This was a trial on assessment of damages following entry of default judgment against various members of the Police Force (the first, second and third defendants) and the Madang Provincial Administrator (fourth defendant) and the State (fifth defendant).

2. The plaintiffs are residents of Bagildig and Sildig villages, Sumkar District, Madang Province. They commenced proceedings against the State and other defendants in August 2015, claiming damages for alleged breaches of human rights committed by members of the Police Force in connection with Police raids on their villages on 22 and 23 April 2014. They alleged that members of the Police Force entered their villages and destroyed their homes, gardens and other properties and in some cases threatened and assaulted the plaintiffs. It was claimed that the raids were requested and sponsored by the then Madang Provincial Administrator, Bernard Lange, a close relative of whom had been murdered in an incident on the nearby North Coast Highway shortly before the raids. The police evidently believed that the residents of Bagildig and Sildig villages were harbouring persons involved in the crime.

3. The defendants failed to properly defend the matter and on 2 May 2016 default judgment was entered against all defendants:

• first defendant: Snr Const Adam Yawing, the member of the Police Force in charge of the raids;
• second defendant: Chief Inspector Anthony Wagambie Junior, Madang Provincial Police Commander;
• third defendant: the Commissioner of Police;
• fourth defendant: the Madang Provincial Administrator; and
• fifth defendant: the State.
  

4. Since default judgment was entered, the Supreme Court has in Philip Nare v The State (2017) SC1584 pointed to the futility of seeking or ordering judgment against the Commissioner of Police in cases such as the present, where the claim and the order should be made only against the State – unless the Commissioner is alleged or found to have been personally involved in the wrongful conduct giving rise to vicarious liability of the State. In this case there has never been any suggestion or finding of personal involvement by the Commissioner.

5. I have decided therefore on the own motion of the Court to set aside the default judgment against the Commissioner (the third defendant) and the two other Police defendants (the first and second defendants). I have also decided for the avoidance of doubt that the proceedings against the Commissioner and the other two Police defendants should be dismissed. Likewise, there in little utility in maintaining judgment against Mr Lange, who no longer holds the office of Madang Provincial Administrator, and the default judgment and the proceedings against him will be set aside and dismissed. These decisions, which do not materially prejudice the plaintiffs or the State, are reflected in the final order of the Court and ensure that there are no unresolved issues after entry of judgment on assessment against the State. This will make enforcement of the judgment a more realistic prospect and advance the interests of justice.

PLAINTIFFS’ CLAIMS AND DEFENDANTS’ RESPONSE

6. At this trial on assessment of damages, the plaintiffs sought damages in four categories:

(a) general damages for pain and suffering, distress etc, totalling K8,790,000.00;

(b) property losses, totalling K3,696,450.00;

(c) breach of human rights totalling K3,540,000.00; and

(d) exemplary damages totalling K1,494,000.00,

a grand total of K17,520,450.00.

7. The State argued that the question of liability should be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim. In the alternative it was argued that the plaintiffs who had given evidence and signed an authority to act form, of which, it was argued, there are 70, should be awarded no more than K5,000.00 each, a total of K350,000.00, due to a lack of evidence to support the claims.

EVIDENCE

8. The plaintiffs’ case consisted of affidavits sworn by 87 plaintiffs and an affidavit by Gibson Kama, a registered valuer, annexing a separate valuation report he prepared in respect of property losses for each plaintiff who gave evidence. Each of the plaintiffs’ affidavits set out what the police had done and the property damage, assaults and threats that the deponent and his or her family members had incurred and/or witnessed. The defendants adduced no evidence.

PRELIMINARY ARGUMENTS

9. I dismiss the State’s preliminary argument about revisiting the question of liability and dismissing the proceedings. The argument has been made late (well after entry of default judgment), without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner (in this case, soon after entry of default judgment) and supported by affidavit. Alternatively the State should have appealed to the Supreme Court against the entry of default judgment. I make the same comment regarding the State’s argument that no more than 70 plaintiffs should be awarded damages because of the alleged failure of some plaintiff to sign an authority to act form. That is an argument about liability, and is foreclosed by entry of default judgment.

10. Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that the police raids, unsupported by the order or warrant of any Court, took place in the manner alleged, involving destruction of property, fear and distress and bodily assault on some plaintiffs.

11. As explained by the Supreme Court in William Mel v Coleman Pakalia (2005) SC790, the role of the judge assessing damages after entry of default judgment is:

• to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;
  
• if the facts and cause of action are reasonably clear, liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;
  
• only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability;
  
• the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;
  
• any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
  

12. I am satisfied that the facts and the causes of action are pleaded with sufficient clarity. Liability is therefore regarded as proven. The plaintiffs have established causes of action against the fifth defendant for the torts of trespass, assault, battery and negligence and for breach of human rights, in particular, breach of the following:

• the right to freedom from inhuman treatment under Section 36 of the Constitution;
  
• the right to freedom from arbitrary search and entry under Section 44 of the Constitution;
  
• the right to privacy under Section 49 of the Constitution;
  
• the right of protection from unjust deprivation of property under Section 53 of the Constitution.
  

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES

13. In assessing damages I have had regard to the following principles:

• The plaintiffs have the onus of proving their losses on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it (Yooken Paklin v The State (2001) N2212).
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim (Peter Wanis v Fred Sheekiot and The State (1995) N1350).
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence (Yange Lagan v The State (1995) N1369).
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi v Sergeant Poko (2001) N2274).
  

APPROACH TO ASSESSMENT OF DAMAGES

14. I am persuaded by the submissions of counsel for the plaintiffs, Mr Pipike, that the evidence that has been given is of sufficient quality to make an assessment of damages in respect of each of the 87 plaintiffs who has given evidence. I will assess damages in the four categories of damages claimed by the plaintiffs.

(a) GENERAL DAMAGES

15. Mr Pipike submitted that each plaintiff who has given evidence should be awarded at least K50,000.00 general damages and in addition K50,000.00 for each adult dependant and K20,000.00 for each of their child dependants. For example, the lead plaintiff from Bagildig village, Peter Gaian, claims K50,000.00 for himself plus K50,000.00 for his wife, Gamoi Peter, and K20,000.00 for each of his three children, aged 7, 8 and 12 years respectively, a total general damages claim of K160,000.00.

16. I uphold the submission of the defendants’ counsel, Mr Wak, that such claims are excessive. There is ample evidence that it was a frightening and disturbing experience for all plaintiffs to see the Police enter their village and threaten them with firearms as the Police set about burning their dwellings. However it is not appropriate to award specific amounts of damages to persons, including family members, who are not standalone plaintiffs. I award each plaintiff who has given evidence the sum of K20,000.00, which encompasses compensation to the plaintiff in question and his or her dependants.

17. The total amount of general damages is 87 plaintiffs x K20,000.00 per plaintiff = K1,740,000.00.

(b) PROPERTY LOSSES

18. I am persuaded by Mr Wak’s submission that a lack of corroboration pervades the plaintiffs’ evidence as to property losses, calling into question its veracity. For example, the lead plaintiff from Sildig village, Wesley Don, claims property losses of K378,900.00 plus a house said to be destroyed worth K162,000.00, a total of K540,900.00. He has given evidence in support of these amounts, including a valuation report by a registered valuer. But there is no independent verification. I simply do not find it credible that property of that value would have been in a rural village. Many plaintiffs are claiming substantial property losses, which seems incongruous with the standard of living reasonably expected to be applicable to a group of villagers.

19. The plaintiffs’ claims are in my view exaggerated. It is nonetheless appropriate to arrive at an assessment of damages. Though there were many deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that an unlawful raid, unsupported by the order of any Court, took place in the manner alleged, involving substantial destruction of property.

20. I have had regard to the approach I have taken in a number of other cases of multiple plaintiffs, most of which are “police raid cases”. In some cases I have discounted each claim by a certain percentage to arrive at reasonable and realistic sums. For example:

• Eton Pakui v The State (2006) N2977: a case involving an unlawful police raid of Tulipato village, Enga Province. The 16 claims were each discounted by 90%.
  
• Joe Tipaiza v James Yali (2008) N3472: 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by Police and the provincial government in Madang. Each claim was discounted by 50%.
  
• Anuta Jobou v Alfred Kumasi and The State (2012) N4607: there was an unlawful police raid of Bom village in the Rai Coast district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The claims by the 155 plaintiffs were each discounted by 50%.
  
• Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221: 1,281 plaintiffs, illegal settlers on Government land in Madang, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81. It was held that there was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded. As for the claims for property damage, each claim was discounted by 90% to arrive at an award of damages for property losses.
  

21. In other cases I have awarded the same global sum to each plaintiff who has given evidence. For example:

• Justin Bau v Paul Karl (2010) N4123: 61 plaintiffs were the victims of a police raid at Muledami settlement in the hilltops around Kimbe, West New Britain. In an assessment of damages following entry of default judgment against the State I concluded that the claims were exaggerated and because of the lack of precision in the amounts being claimed by the plaintiffs I awarded them a flat figure of K10,000.00 each, rather than discounting each claim.
  
• Alphonse Willie v Simon Kaupa (2016) N6553: 1,852 plaintiffs sued the Police and the State after a series of raids on villages in the Gena area of Kerowagi District, Chimbu Province. Default judgment was entered against the State, which was held to be vicariously liable for the torts of trespass to property and detinue and for breaches of human rights committed by members of the Police Force. Because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence were awarded a global sum of K5,000.00 each to cover all causes of action and all categories of damages. The total amount of damages awarded was K8,435,000.00.
  

22. I have decided to take the first approach outlined above. I will discount each claim by 80% to take account of the deficiencies in the evidence. The result of this process of assessment is shown in table 1. Column 1 is the number ascribed to the plaintiff according to the numbering of his or her affidavit. Column 2 is the plaintiff’s name. Column 3 is the amount claimed by the plaintiff for property, apart from house, losses. Column 4 is a claim for the value of the plaintiff’s destroyed house. Column 5 is the total of columns 3 and 4: it is the plaintiff’s total claim for property losses. Column 6 is the figure in column 5 multiplied by 20% (representing the discounting of the total claim for property losses by 80%). It is the figure in column 6 that is the amount awarded to the plaintiff for property losses (category (b) of the claims).

TABLE 1: AWARD OF DAMAGES
FOR PROPERTY LOSSES INCLUDING HOUSE LOSSES

(c) COMPENSATION FOR BREACH OF HUMAN RIGHTS

23. It is appropriate to award a separate sum as compensation for breaches of human rights. I award the amount claimed, K5,000.00 for each plaintiff.

24. The total amount of general damages is 87 plaintiffs x K5,000.00 per plaintiff = K435,000.00.

(d) EXEMPLARY DAMAGES

25. 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.

26. 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 raided these two villages like terrorists.

27. 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). With respect, I am not bound to take that approach and frankly I do not agree with it as it would make it too difficult for the plaintiffs to recover the amounts to which they are entitled. I award the amount claimed, K5,000.00 for each plaintiff.

28. The total amount of exemplary damages is 87 plaintiffs x K5,000.00 per plaintiff = K435,000.00.

SUMMARY

29. Each plaintiff who has given evidence is awarded the total of the following sums:

(a) General damages: K20,000.00;
(b) Property losses: the amount shown for that plaintiff in table 1;
(c) Compensation for breach of human rights: K5,000.00;
(d) Exemplary damages: K5,000.00.

The total award of damages to each plaintiff who has given evidence is shown in table 2.

TABLE 2: TOTAL AWARD OF DAMAGES

INTEREST

30. Mr Pipike submitted that interest should be awarded on the total amount of damages awarded to each plaintiff under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. He seeks interest at the rate of 2% per annum against the State (in line with Section 4(3) of that Act). I uphold that submission.

31. As for the period in respect of which interest is calculated, I fix the start date as the date of the filing of the writ, 5 August 2015. The end date will be the date of delivery of this judgment. The relevant period is 2.5 years. Interest will be awarded by applying the formula D x I x N = A, where D is the amount of damages, I is the interest rate per annum, N is the period in years, A is the amount of interest. Interest has thus been calculated by multiplying each award of damages by a factor of 0.05 (0.02 x 2.5) and is shown in the Schedule below.

COSTS

32. 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. The question of costs is a discretionary matter. I have given close consideration to awarding the plaintiffs only part of their costs as I have found their claims to be exaggerated. However the State made submissions that were also largely rejected. I have decided that costs will follow the event.

ORDER

1. Damages are payable by the fifth defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
2. In addition, interest is payable by the fifth defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
3. The case of each plaintiff whose name does not appear in the Schedule is dismissed.
   
4. The default judgment entered on 2 May 2016 against the first, second, third and fourth defendants is to that extent set aside and the proceedings against those defendants are dismissed.
   
5. Subject to any particular costs order to the contrary, costs of the entire proceedings shall be paid by the fifth defendant to the plaintiffs whose name appears in the Schedule, on a party-party basis, to be taxed if not agreed.
   

SCHEDULE

Judgment accordingly.
________________________________________________________________
GP Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the First, Second, Third & Fifth Defendants