N7073
PAPUA NEW GUINEA
   	[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 314 OF 2015

EKIP PADE
First Plaintiff

BRAS DOS, BONI KEROWA, JAMES WALUA, 
PORA MEK & MICHAEL NEMA
Second Plaintiffs

V

CONSTABLE ALBERT NANGAS
First Defendant

INSPECTOR BEN KUA, 
HOHOLA POLICE STATION COMMANDER
Second Defendant

THE COMMISSIONER OF POLICE
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J
2016: 24 April, 25 May 
2018: 31 January 

DAMAGES – assessment of damages following entry of default judgment – negligence – breach of human rights – leg amputated due to police shooting – detention without charge. 

Members of the Police Force raided an urban settlement occupied by the plaintiffs, apparently searching for suspects implicated in the death of a fellow member of the Force in an earlier incident. The first plaintiff was shot in the leg, apprehended and taken to a nearby police lock-up where he was detained for four days without charge and without medical treatment. He was taken to hospital upon his release from custody and his leg was amputated due to the life-threatening nature of the injury. Five other men (the second plaintiffs) were apprehended at the same time as the first plaintiff. They were assaulted, apprehended and taken to the same police lock-up that the first plaintiff was taken to. They were further assaulted in the lock-up and denied medical treatment for several days before being charged with murder. They spent four months in remand before the charge was dismissed for want of prosecution. All plaintiffs commenced proceedings against the members of the Force they alleged were responsible for what happened to them and the Commissioner of Police and the State, claiming damages for breach of human rights and negligence. Default judgment was entered against the Commissioner and the State. A trial on assessment of damages followed. The first plaintiff sought damages in nine categories, totalling K4 million. The other plaintiffs sought damages in four categories, totalling K130,000.00 each. The State asked the Court to revisit the issue of liability and dismiss the proceedings as the statement of claim was defective. The State argued, in the alternative, that the first plaintiff be awarded no more than K85,000.00 and that the other plaintiffs be awarded no more than K5,000.00 each. 

Held:

(1)	When assessing damages after entry of default judgment, the judge should make a cursory inquiry so as to be satisfied that the facts and cause of action are pleaded with sufficient clarity. 

(2)	Though the statement of claim was vague, poorly drafted and did not properly plead vicarious liability, the facts and causes of action were nonetheless clear. The State’s preliminary argument was rejected. 
 
(3)	The nine categories of damages sought by the first plaintiff were assessed as: (a) general damages, K200,000.00, (b) housing costs, 0, (c) future medical costs, 0, (d) “past gratuitous care”, 0, (e) “future gratuitous care”, 0, (f) economic loss, 0, (g) special damages, 0, (h) compensation for human rights breaches, K30,000.00, (i) exemplary damages, K50,000.00, a total award of K280,000.00. 

(4)	The four categories of damages sought by other plaintiffs were assessed as: (a) compensation for human rights breaches, K10,000.00, (b) damages for assault, 0, (c) damages for malicious prosecution and false imprisonment, 0, and (d) exemplary damages, K5,000.00, a total award of K15,000.00 each. 

(5)	The plaintiffs were awarded total damages of K355,000.00 and total interest of K43,169.00, making the total judgment sum K398,168.00. 

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518 
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Jessie Namba v The State (2011) N4396
Joe Kape Meta v The State (2012) N4745
Lance Kolokol v The State (2009) N3571
Philip Nare v The State (2017) SC1584
PNGBC v Jeff Tole (2002) SC694
Seupain v The State (2009) N3573
Vincent Kerry v The State (2012) N4658
William Mel v Coleman Pakalia (2005) SC790

ASSESSMENT OF DAMAGES

This was an assessment of damages for breaches of human rights and negligence, following entry of default judgment. 

Counsel:

S Wanis, for the Plaintiffs
T Mileng, for the Third and Fourth Defendants

31st January, 2018

1.    CANNINGS J: This is an assessment of damages for breaches of human rights and other civil wrongs committed by members of the Police Force against the plaintiffs, six adult men. Liability has been established by default judgment against the third and fourth defendants, the Commissioner of Police and the State. 

INCIDENT 

2.   In the statement of claim the plaintiffs alleged that in the early hours of 27 December 2011 members of the Police Force under the command of the third defendant, Inspector Ben Kua, Hohola Police Station Commander, raided Morata 2 settlement in the National Capital District, where the plaintiffs were residing, apparently searching for suspects implicated in the death of a fellow member of the Force who had been killed while on duty several days earlier. 

3.   The first plaintiff, Ekip Pade, was shot in the leg, apprehended and taken to Hohola police lock-up where he was detained for four days without charge and without medical treatment. He was admitted to hospital upon his release from custody and on 6 January 2012 underwent an above-knee amputation of his left leg due to the life-threatening nature of the gunshot wound he had incurred. 

4.   Five other plaintiffs, Bras Dos, Boni Kerowa, James Walua, Pora Mex and Michael Nema (referred to collectively on the writ as “second plaintiffs”), were apprehended at the same time as the first plaintiff. They were assaulted, apprehended and also taken to Hohola police lock-up. They were further assaulted in the lock-up by police and denied medical treatment and food for several days before being charged with murder. They spent four months in remand at Bomana Correctional Institution before the charge was dismissed for want of prosecution. 

PROCEDURE 

5.  On 24 March 2015 the plaintiffs commenced proceedings against the member of the Force they alleged was primarily responsible for what happened to them (the first defendant, Constable Albert Nangas) and the Hohola Police Station Commander (second defendant), the Commissioner of Police (third defendant) and the State (fourth defendant), claiming damages for breaches of human rights and negligence. 

6.   The defendants failed to properly defend the matter and on 8 February 2016 default judgment was entered against the Commissioner and the State. The default judgment has not been set aside and a trial on assessment of damages has been conducted.  

7.   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. 

8.   I have decided therefore on the own motion of the Court to set aside the default judgment against the Commissioner. I have also decided for the avoidance of doubt that the proceedings against the Commissioner and the other two defendants should be 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 remaining after entry of judgment on assessment against the State.  

EVIDENCE

9.  Affidavits by each of the six plaintiffs, detailing the incident and its aftermath and in the case of the first plaintiff annexing medical records including a report on his leg amputation, have been admitted into evidence. The defendants presented no evidence.

PRELIMINARY ARGUMENT  

10.    Mr Mileng, counsel for the Commissioner and the State, asked the Court to revisit the issue of liability and dismiss the proceedings on the ground that the statement of claim is defective as it failed to plead:

•	the names of the actual wrongdoers, and 
•	that they were employed by the State, and 
•	that they committed wrongful acts while performing functions imposed by them in the course of their employment, and 
•	that the State was vicariously liable under Section 1(1) of the Wrongs (Miscellaneous Provisions) Act. 

11.   I am not persuaded by this argument. 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). 

12.   I have made that inquiry. Though the statement of claim is vague, poorly drafted and does not properly plead vicarious liability, the facts and causes of action are nonetheless clear. Liability will not be revisited. This is an appropriate case for assessment of damages, the causes of action being breach of human rights and negligence. 

SUBMISSIONS 

13.   Mr Wanis, counsel for the plaintiffs, submitted that the first plaintiff is entitled to nine categories of damages, totalling approximately K4 million, and that the five other plaintiffs are entitled to four categories of damages totalling K130,000.00 each. 

14.  Mr Mileng submitted that the first plaintiff be awarded no more than K85,000.00 and that the other plaintiffs be awarded no more than K5,000.00 each. 

ASSESSMENT OF DAMAGES FOR FIRST PLAINTIFF, EKIP PADE

15.   Set out in table 1 are the nine categories of damages and a comparison of the money amounts claimed by the plaintiff with the amounts that the defendants contend are appropriate. The final column contains the Court’s assessment.

TABLE 1: CLAIMS AND AWARDS OF DAMAGES FOR FIRST PLAINTIFF
No	Category	Plaintiff’s claim (K)	Defendants’ response (K)	Award
(K)	
(a)	General damages	2,000,000.00	75,000.00	200,000.00	
(b)	Housing 	500,000.00	0	0	
(c)	Future medical costs 	80,000.00	0	0	
(d)	Past care	200,000.00	0	0	
(e)	Future care	500,000.00	0	0	
(f)	Economic loss	500,000.00	0	0	
(g)	Special damages	6,632.00	0	0	
(h)	Breach of human rights	160,000.00	10,000.00	30,000.00	
(i)	Exemplary damages	50,000.00	0	50,000.00	
	Total	3,996,632.00	 85,000.00	280,000.00	

(a)	General damages

16.   Mr Mileng helpfully referred to four previous cases in which I had assessed general damages for plaintiffs who had had a leg amputated. The cases are summarised in table 2.

TABLE 2: ASSESSMENT OF GENERAL DAMAGES: AMPUTATED LEG
No	Case	Details	Amount	
1	Seupain v The State (2009) N3573
Madang	The plaintiff was a three-month old baby who was negligently administered an inappropriate drug by an aid post orderly – the plaintiff suffered severe neurovascular damage including gangrene – a below-knee amputation was necessary.	K100,000.00
	
2	Jessie Namba v The State (2011) N4396 Madang 	The plaintiff was deliberately shot twice in the leg by Police for no good reason, then detained in a police lock-up for several hours before being taken to hospital for treatment – he had a below-knee amputation. 	K150,000.00	
3	Joe Kape Meta v The State (2012) N4745 Waigani	A member of the Police Force shot at the plaintiff four times, who was a suspect in an armed robbery investigation – the plaintiff offered no resistance and was innocent – he incurred an above-knee amputation. 	K175,000.00
	
4	Vincent Kerry v The State (2012) N4658 Waigani	A member of the Police Force, while on police duty, shot the plaintiff in the leg for no good reason – the plaintiff’s leg had to be amputated above the knee – the plaintiff was subject to other indignities and suffered other injuries and dumped by Police at the local hospital.	K200,000.00

17.    Mr Mileng attempted to distinguish the facts of the present case with those in the police shooting cases, Namba, Meta and Kerry, which were all cases of the plaintiffs being shot deliberately by police. Mr Mileng suggested that Ekip Pade was shot negligently by a stray bullet and that this made it a less serious case. I reject the argument. What happened to the plaintiff after he was shot – he was taken to the police lock-up and detained there for four days without medical treatment – suggests that he was not shot accidentally. The evidence suggests that he was shot deliberately. However even if he had been shot negligently, the award of general damages is intended to compensate the plaintiff for the pain and suffering, inconvenience, loss of use of his leg and other losses endured by anyone who suffers this sort of injury. The plaintiff was not treated well by the police. He almost died. He was treated inhumanely. It is an above-knee amputation and the case has aggravating features similar to those in Kerry. The appropriate amount is K200,000.00.

(b)	Housing 

This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 

(c)	Future medical costs

This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 
 
(d)	“Past gratuitous care”

This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 
 
(e)  	“Past gratuitous care”

This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 

(f)	Economic loss

This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 

(g)	Special damages

This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 
 
(h)	Compensation for breach of human rights 

As I indicated in Lance Kolokol v The State (2009) N3571 (a police shooting case where the plaintiff suffered a permanent 20% loss of functionality of one leg) there are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action. I will take the first approach. Compensation for breaches of human rights will be assessed separately from general damages, special damages and exemplary damages.

18.    Sections 57 and 58 of the Constitution provide that human rights breaches are enforceable through an award of compensation. The plaintiff’s human rights were breached on three distinct occasions:

•	when he was shot, which amounted to inhuman treatment, a denial of the full protection of the law and harsh and oppressive conduct contrary to Sections 36, 37 and 41 of the Constitution;

•	when he was arrested and detained without being informed properly and formally of the reasons for his arrest and afforded other rights under Section 42 of the Constitution;

•	when he was denied medical treatment, which amounted to inhuman treatment, a denial of the full protection of the law and harsh and oppressive conduct contrary to Sections 36, 37 and 41 of the Constitution.

19.   The breaches of human rights were of greater magnitude than in Kolokol.  I will award more than in Kolokol: K10,000.00 for each of the three occasions, a total of K30,000.00.

(i)	Exemplary damages

20.     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.

21.   Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518 the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages should be payable by the State. If the facts fit into the second category of cases, exemplary damages are a matter of discretion. A plaintiff is expected to seek such redress from the individual police officers who breached the law (eg Andale More and Manis Andale v Henry Tokam and The State (1997) N1645).

22.  Mr Mileng submitted that nothing should be awarded for exemplary damages as the member of the Police Force who actually shot the plaintiff has not been named. 

23.   I reject that submission. Once a case has reached this stage the plaintiff’s interests are more important than those of the State. It would not be fair or just to deny him exemplary damages simply because the police officers who shot him have not been identified by the court or because those officers acted well outside their proper scope of authority. The Police Force and the State have obviously failed in their duty to train and educate the police officers who in fact shot the plaintiff and breached his human rights on proper and acceptable methods of policing. The State must be penalised for the wilfully unconstitutional actions of its officers. 

24.  I find that the breach of constitutional rights was sufficiently severe to warrant an award of exemplary damages. This was a horrendous case of Police brutality, in which the police detained the plaintiff for four days with a life-threatening injury without medical treatment. I award exemplary damages of K50,000.00.

Summary of damages awarded to first plaintiff

25.  General damages (K200,000.00) + compensation for breaches of human rights (K30,000.00) + exemplary damages (K50,000.00) + other damages sought (0) = K280,000.00. 

ASSESSMENT OF DAMAGES FOR OTHER PLAINTIFFS: BRAS DOS, BONI KEROWA, JAMES WALUA, PORA MEK & MICHAEL NEMA

26.   Set out in table 3 are the nine categories of damages and a comparison of the money amounts claimed by the second plaintiffs with the amounts that the defendants contend are appropriate. The final column contains the Court’s assessment.

TABLE 3: CLAIMS AND AWARDS OF DAMAGES FOR SECOND PLAINTIFFS
No	Category	Plaintiff’s claim (K)	Defendants’ response (K)	Award
(K)	
(a)	Breach of human rights	50,000.00	5,000.00	10,000.00	
(b)	Assault, false imprisonment	30,000.00	0	0	
(c)	Malicious prosecution	30,000.00	0	0	
(d)	Exemplary damages 	20,000.00	0	5,000.00	
	Total	130,000.00	 5,000.00	15,000.00	

(a)	Breach of human rights 

27.     These plaintiffs were not injured nearly as badly or treated as badly as the first plaintiff. However there is ample evidence of human rights breaches and I award them K10,000.00 each. 

(b)	Assault and false imprisonment 

28.     This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 

(c)	Malicious prosecution 

29.    This category of damages is inadequately pleaded and there is a dearth of evidence to support it. I award nothing. 
 
(d)	Exemplary damages 

30.     I find that the breach of constitutional rights was sufficiently severe to warrant an award of exemplary damages of K5,000.00 each. 

Summary of damages awarded to second plaintiffs

31.      Compensation for breaches of human rights (K10,000.00) + exemplary damages (K5,000.00) + other damages sought (0) = K15,000.00 each.

INTEREST

32.    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 (27 December 2011) to the date of this judgment, a period of 6.08 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. The first plaintiff is awarded: K280,000.00 x 0.02 x 6.08 = K34,048.00. Other plaintiffs are each awarded: K15,000.00 x 0.02 x 6.08 = K1,824.00.

COSTS

33.   The plaintiffs have obtained considerably less than what they sought and in these circumstances it is appropriate that the parties bear their own costs. 

ORDER

1.	Damages are payable by the fourth defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff, the total award of damages being K355,000.00.

2.	In addition, interest is payable by the fourth defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff, the total award of interest being K43,168.00.

3.	The default judgment entered on 8 February 2016 is, to and only to the extent to which it ordered judgment against the third defendant, set aside.

4.	The proceedings against the first, second and third defendants are dismissed. 

5.	Subject to any particular costs order to the contrary, the parties will bear their own costs of the proceedings.  

SCHEDULE 
No	Name	Total damages
(K)	Interest
(K)	Total award of damages + interest 
(K)	
1.		Ekip Pade	280,000.00	34,048.00	314,048.00	
2.		Bras Dos	15,000.00	1,824.00	16,824.00	
3.		Boni Kerowa	15,000.00	1,824.00	16,824.00	
4.		James Walua	15,000.00	1,824.00	16,824.00	
5.		Pora Mek	15,000.00	1,824.00	16,824.00	
6.		Michael Nema 	15,000.00	1,824.00	16,824.00	
7.		Total	355,000.00	43,168.00	398,168.00	

Judgment accordingly,
______________________________________________________
Warner Shand Lawyers:  Lawyers for the Plaintiffs					 
Solicitor-General:   Lawyer for the third and Fourth Defendants