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Solmein v Lim [2020] PGNC 264; N8449 (12 August 2020)

N8449

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR)NO 4 OF 2017

BETWEEN:
DARYL SOLMEIN
Plaintiff

AND:
SENIOR CONSTABLE OBERT LIM
First Defendant

AND:
CONSTABLE NATHAN KERRY
Second Defendant

AND:
CONSTABLE MMICHAEL MALAI
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Narokobi J
2020: 9July, 12August

DAMAGES – assessment of damages – general damages – special damages – exemplary damages – breach of human rights – unlawful actions of police – level of swearing denigrating the female gender.

The plaintiff was in the company of his brothers, one of who was driving his father’s car when they were stopped by the police. His brother was asked for his licence. When he said he left it at home, the first defendant, in full view of the other defendants started to assault the plaintiff’s brother. When he came to ask them to stop, the first defendant turned on him and started assaulting him too. He punched him repeatedly, and when he fell down, he kicked him. Subsequent medical report did not show permanent injuries, nonetheless the attack was vicious. Throughout the ordeal he was sworn at. The plaintiff and his father and brothers were threatened to be killed if they took the matter to court.At the police station he was charged for obstructing the police. His charges were later dismissed by the District Court. Liability was determined by default and the matter is now before the court for assessment of damages being general damages for assault and malicious prosecution, breach of constitutional rights, special damages and interest.

Held:

(1) This was a case where compensation for breaches of human rights should be assessed separately from general damages (Kolokol v Amburuapi (2009) N3571 followed).

(2) The Kolokol approach is not universal and relevant considerations include the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, and in this particular case, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms. But again, each case should be dealt with on its own merits.

(3) General damages for assault were assessed at K8, 000.00.

(4) General damages for malicious prosecution was assessed at K10,000.00

(5) The plaintiff’s human rights were breached on five(5) distinct occasions:

• When he was assaulted;
• When he was sworn at several times;

• When he was denied opportunity to speak to a relative, friend or lawyer;
  • When he was locked up for three hours which was not warranted under the circumstances; and
  • When he was threatened with violence not to take the matter to court or he and his family would be killed.

(6) On each of those occasions, six (6) of his human rights were breached:

• Freedom from inhuman treatment (Constitution, s 36);
• Right to the full protection of the law (Constitution, s 37(1));
• Right to be treated with humanity and with respect for the

inherent dignity of the human person (Section 37(17);

• Proscribed acts (Section 41); and
• The right of a detained person to be permitted whenever

practicable to communicate in private with a member of his family and a lawyer (Section 42(2)(b)).

(7) He was awarded K2, 000.00 x 5 = K10 000.00 compensation.

(8) Special damages were assessed at K425.00.

(9) The breach of constitutional rights showed a wanton disregard of constitutional rights, subsequently leading to malicious prosecution and the use of insulting and sexist words throughout the ordeal, amidst a climate of escalating gender-based violence warrants an award of exemplary damages of K6, 000.00.
(10) The total amount of damages awarded was K36, 365. In addition, interest of K K3,451.66 is payable, making the total judgment of K39,816.66.

Cases Cited:
Chapok v Yali(2008) N3474.
Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182
David Haluya v Samson Gurel and the State (2001) N2109
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Felix Kua v. Clement Patiken (2010) N4103
Kolokol v Amburuapi (2009) N3571
Patai v Niugini Lumber Merchants Pty Ltd (1997) N1602
PawaKombea v Semal Peke [1994] PNGLR 572
Teine Molomb v The State (2005) N2861
Topo v Kaman (2009) N3773

TRIAL

This is a trial on assessment of damages.

Counsel

Felix Alai Solmien, with leave of the court for the Plaintiff
No appearance for the defendants

JUDGEMENT

12August 2020

1. NAROKOBI J: On 7 February 2020, default judgment was entered against the defendants on liability with damages to be assessed pursuant to Order 12 Rules 25(b) and 28 of the National Court Rules. The trial was conducted on 9 July 2020. This is the court’s decision on assessment of damages.

A BACKGROUND

2. The plaintiff claims damages for physical and verbal assault and breaches of his human rights and freedoms by the police.
   
3. Initially the defendants were:- Senior Constable Orbert Lim, first defendant; Constable Nathan Kerry, second defendant; Constable Michael Malai, third defendant; Constable Cosmas Kafur, fourth defendant; Sergeant Willie Marita, fifth defendant; Constable Albert Pomat, six defendant; Constable Leroy Makel, seventh defendant; The Independent State of Papua New Guinea, Eight defendant.
   
4. On 27 July 2019, the fourth, fifth, sixth and seventh defendants were removed as parties by the court on 27 July 2019. The first, second, third and eighth defendants remain as defendants.
   
5. At the time of the incident on 4 November 2015 the plaintiff was a Grade 12 student at Jiwaka Grammar School in Jiwaka. The police assault and breaches of his rights and freedoms occurred in Madang. He relies on his statement of claim and his own affidavit filed on 21 April 2020 to support his claim for damages.
   
6. The plaintiffs claim is corroborated by the affidavits of: Smaila Solmein (filed 21 April 2020); Vance Solmein (filed 21 April 2020); Felix Solmein Alai (filed 21 April 2020) who commenced separate proceedings naming the same defendants (WS (HR) No 3 of 2017, WS No 5 of 2017 and WS (HR) No 6 of 2017, respectively). They were all present on the day when the violation of the plaintiff’s rights occurred, and they have filed proceedings separately claiming breaches of their rights too. Trials were heard on the same day and the affidavit materials were relied on to support each of the proceeding. I consider these affidavits too, as I am permitted to do so pursuant to section 44(b) of the Evidence Act 1975.
7. After entry of default judgment, all issues of liability are considered to be determined (Coecon Ltd (Receiver-Manager Appointed) v National Fisheries Authority of Papua New Guinea (2002) N2182 and Patai v Niugini Lumber Merchants Pty Ltd (1997) N1602).
   
8. I have examined the pleadings and am satisfied that there is a cause of action and so now I turn to determine the relevant damages based on the evidence provided to the court (Felix Kua v. Clement Patiken (2010) N4103).
   
9. I have also been greatly assisted by Mr Felix Solmein Alai’s comprehensive submissions. He provided a good background of the proceeding, the evidence was credibleand the relevant case law in relation to assessment of damages for police brutalityand breach of constitutional rights were submitted. The amount claimed was reasonable and were not exaggerated considering that it was not defended.
   
10. In summary the plaintiff claims general damages for assault and malicious prosecution and special damages and exemplary damages and interests. At submissions the following was submitted:
    

11. The pertinent facts substantiating each claim will be discussed under each head of damage claimed.
    

B ISSUES

12. In assessing damages, I have reviewed a number of cases and I settle with the approach of Cannings J in Kolokol v Amburuapi(2009) N3571. His Honour took the same course the court took in David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Pawa Kombea v Semal Peke [1994] PNGLR 572.
    
13. The following are the issues I will consider:
    
    • Whether the plaintiff is entitled to general damages for assault, pain and sufferingand if so, for how much?;
    • Whether the plaintiff is entitled to general damages for malicious prosecution and if so, for how much?
    • Whether the plaintiff is entitled to damages for breach of constitutional rights, and if so, for how much?;
    • Whether the plaintiff is entitled to special damages and if so, for how much?;
    • Whether the plaintiff is entitled to exemplary damages and if so, for how much?; and
    • Whether the plaintiff should be awarded interest on any damages assessed and if so, at what rate and for what period?
    • Whether the plaintiff is entitled to
      

100. LAW
     

14. Following facts arose in Kolokol as recounted in the headnotes:

“The plaintiff was walking with friends near a public road. When he saw the police, he ran away. He 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. He sued the police officers who assaulted and shot him, and the State, claiming general damages, compensation for breach of human rights, special damages and exemplary damages. Default judgment was entered against the defendants, with damages to be assessed.”

15. His Honour awarded damages for each separate cause of action pleaded, that is general damages, for each occasion the plaintiff’s rights were breached, special damages, exemplary damages and interests.
    
16. The alternative approach is to award a global sum for all damages suffered as was what the court did in Teine Molomb v The State (2005) N2861. The plaintiff has urged the court to adopt the approach in Kolokol.
    
17. As I said above, I take the approach in Kolokol. I do so bearing in mind that it is not a universal approach and each case ought to be considered on its own merits. I take the Kolokol approach as I consider the cause of action has been sufficiently pleaded, there is good evidence of the claim and that evidence is corroborated. All in all, considering the fundamental importance of human rights and freedom which have constitutional guarantee in Papua New Guinea, the Kolokol approach will enhance the enforcement, protection and promotion of human rights and freedoms, at least in so far as this case is concerned. But again, each case should be dealt with on its own merits.
    

D APPLICATION OF THE LAW TO THE ISSUES

1. First Issue - General Damages forAssault, Pain and Suffering
   
18. The plaintiff claims general damages for the actions of the defendants. In summary these are the acts of the defendants which resulted in their negligence and breach of the plaintiff’s constitutional rights. These facts are pleaded in the statement of claim and supported by the plaintiff’s own affidavit filed 21 April 2020 and the other corroborating affidavits I referred to above.
    
19. On 4 November 2015, the plaintiff was accompanying his brother Smaila Solmein who was driving his father’s car when he was shouted at by the police who were in another vehicle, to stop. Also in the car with them was their other brother Vance Solmein. After they stopped at Tusbab Beach Road in Madang at about 2.36pm, his brother was asked to produce his licence. When he told them that he did not have his licence on him as he forgot to bring it, the first defendant started to swear at him. Following that an intense period of assault ensued. Smaila Solmein was punched by the first defendant and he fell down. After he fell, he was repeatedly kicked and then hit with a stone on his ears and hip when he stood up again.
    
20. The plaintiff could not bear to watch his brother being assaulted so he stepped in and asked to substitute him. The first defendant continued to assault him instead, punching him profusely. There was no resistance from the plaintiff. Surrounding the plaintiff were the other policemen.
    
21. The medical report from Dr Villa Watch dated 9 November 2015 provides the details of the assault, which is consistent with the plaintiff’s evidence and I repeat as a description of the assault that occurred as it is succinctly narrated:
    

“The alleged victim decided to substitute his brother, who was being beaten by a police officer. He was punched in the forehead and fell to the ground. While on the ground the policeman kicked the medial aspect of his chest with his police issued boots. The officer then moved to kick him in the back part of his head and that was when he blacked out for serval seconds, and almost got hit by an oncoming vehicle. There was no active bleeding from his body. He noticed in the first few days that his forehead was dark and he was unable to fully open his mouth, thus he was on a soft diet.”

22. The conclusion of the medical examination reported the following:
    

“From my findings, this man sustained a blunt force trauma to his occiput, right temporomandibular joint and right medial chest wall which coincides with his claim of being physically assaulted.”

23. After he was assaulted, he was taken to the police station and charged for obstructing the police.
    
24. Throughout the ordeal on at least four occasions he and his brothers were sworn at by the first defendant, using the words “Kaikai kan...” (“eat vagina...”). It began when they were stopped at the roadside, and then continued to the police station.
    
25. At the police station he was not afforded an opportunity to speak in private with a family member before he was charged for obstructing the police. His charges were later dismissed by the District Court.
    
26. I turn now to assessing how much damages he should be awarded. I have had recourse to all the affidavits and the statement of claim. The statement of claim is adequately pleaded and the evidence supports what is pleaded. The evidence is also corroborated. I am satisfied that the plaintiff is entitled to general damages for pain and suffering for the assault on him.
    
27. For general damages for the nature of injuries the plaintiff sustained, in that it did not require hospitalisation, I take as the starting point the case of Chapok v Yali(2008) N3474. There, the National Court awarded K5,000 for the following incident:
    

“3. He was getting ready to tell them that the vote of no-confidence had been postponed. But before he started, Mr Yali verbally abused him. He called him a "bastard" and an "arsehole". He accused him of associating with the Ambenob LLG president the previous night. In response to the unfriendly atmosphere Mr Chapok got up to leave. Mr Yali stopped him. He punched him several times in the face, drawing blood and causing him to fall to the floor. Another member of the group, Fred Maliupa, the Usino LLG president, also punched Mr Chapok.”

28. I take the present facts of the case, as a little more serious than the one in Chapok as the assault was more prolonged, and there was repeated swearing. Although he did not suffer any permanent injuries, the viciousness of the attack, the continuous swearing and the fear instilled in the victim needs to be given some weight.There is no medical evidence of psychological harm, but no doubt, this cannot be discounted, such as post-traumatic stress disorder considering the viciousness of the attack and the way it was carried out through a pack mentality arrangement. I award K8,000 for general damages.
    
    2. Second Issue – General Damages for Malicious Prosecution
       
29. The plaintiff has asked for general damages for malicious prosecution but has left it to the court to decide. This claim was pleaded and evidence provided. I therefore consider this claim for an appropriate amount of damages to be awarded.
    
30. I have looked at several cases that awarded general damages starting from Pawa Kombea v Semal Peke [1994] PNGLR 572 where the plaintiff was awarded K15,000.00. That case was decided in 1994.
    
31. In David Haluya v Samson Gurel and the State (2001) N2109 which included some period of imprisonment, the plaintiff was awarded K15,000.
    
32. In Teine Molomb v The State (2005) N2861 Cannings J awarded a global sum of K9,000 as general damages which covered unlawful detention, stress and anxiety and malicious prosecution.
    
33. Topo v Kaman (2009) N3773 involved a case where the plaintiff was arrested and charged for rape and was later discharged by the District court, the National Court awarded K10,000. In that case separate damages was awarded for pain and suffering. I follow this approach in this case as it is appropriate.
    
34. I accept the plaintiff’s evidence that the intention behind his arrest was malicious as he only wanted to protect his brother and not to obstruct the work of the police. His assault and subsequent charges were later dismissed. The plaintiff did not provide full details of the number of times he appeared in court and the reputational damages he suffered, so taking all these into account, I award K10,000 for malicious prosecution.
    
    3. Third Issue – Damages for Breach of Constitutional Rights
       
35. At the police station, he was charged, but was not given an opportunity to contact a family member, lawyer or friend before he was charged.
    
36. The evidence also show that the first defendant threatened to kill him, his brothers and father if they took the matter to court. He said (in pidgin), but translated as follows:
    

“You eat your mother’s vagina! Your father wants to act smart and take us to court, is he? I will charge your father for obstructing police.”

37. Later the first defendant said again (in pidgin) but translated as follows:
    

“You listen! Eat your mother’s vagina! We are policemen from Sisiak! Don’t get yourselves confused! Your father wants to act smart and take us to court, is he? Watch out! I will kill all of you! I will take all your lives.”

38. The plaintiff was then locked up for three (3) hours with no good reason before he was released on bail.
    
39. From the facts provided above, I conclude that the following rights and freedoms were breached.
    

40. I accept the plaintiff’s submission based on the corroborated evidence before the court, that these rights were breached on five (5) occasions:
    
    • When he was assaulted;
    • When he was sworn at several times;
    • When he was denied opportunity to speak to a relative, friend

or lawyer;

• When he was locked up for three hours which was not

warranted under the circumstances; and

• When he was threatened to be killed if he took the matter to

Court.

41. I further accept the plaintiff’s submission and follow the court’s ruling in Kolokol and award K2,000 for each of the occasions of the breach and award a total of K10,000.
    
    4. Fourth Issue – Special Damages
       
42. Special damages is claimed for K365 being for medical costs. It is reasonable and it is substantiated by the evidence before the court and I award this sum.
    
    5. Fifth Issue – Exemplary Damages
       
43. For exemplary damages, I take into account the requirement of Section 12 of the Claims By and Against the State Act 1996.
    

“12. Judgements Against the State.

(1) 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.”

44. I also take into account the court’s ruling in Kolokol and consider the following circumstances as warranting an award of exemplary damages:
    
    • The police were in full uniform, performing normal duties;
    • There was no resistance from the plaintiff;
    • The plaintiff was sworn at several times;
    • There were breaches of the plaintiff’s constitutional rights on at least five (5) occasions (referred to above); and
    • The charges of obstructing the police was malicious as it was later dismissed by the District Court;
    • From the corroborated evidence, the first defendant threatened to kill the plaintiff, his brothers and father if they took the matter to court; and
    • The continuous use of vulgar, sexist and insulting language.
      
45. The behaviour and language of the police were deplorable, and an award of damages for exemplary damages will demonstrate to him and his employer, that this will not be tolerated by the court. There was absolutely no reason for the first defendant to continuously use foul language in the exercise of his duties. In a time when society is concerned with escalating gender-based violence, where according to some studies, two out of every three women in Papua New Guinea are subject to violence (http://www.femilipng.org/wp-content/uploads/2018/10/PNG-GBV_Strategy-2016-2025_150816.pdf), the use of language objectifying the female gender as a symbol of denigration is uncalled for.
    
46. Why policemen readily use the female genitalia as a term of insult while concurrently denigrating the sacrosanct societal and biological role of the mother, almost in automated response, without thinking how the words “eat vagina” and “eat your mother’s vagina,” is perceived about their personal integrity and as officers of government, is a mystery. But it speaks to the mind of a cultural milieu that needs to change. There seems to be an endless sickening fascination with the female genitalia by the first defendant, prefacing his statements with “eat vagina...”. The repeated use of these words time and time again, can disturbingly plug the ears of society to the repulsive and shocking insinuations these words convey. Accordingly, their repeated use should not desensitize the court, much less society in general each time they are uttered. It must stop. And it starts with the officers of the Independent State of Papua New Guinea.
    
47. In light of these considerations I award exemplary damages to be paid by the State. The plaintiff submits that he should be entitled to K4,000. I accept the plaintiff’s submission as reasonable but add another K2,000 in light of the foregoing and award the sum of K6,000.
    
48. The total damages I award are therefore as follows:
    

6. Fifth Issue - Interest
   
49. For interest, I note that it is a discretionary matter for me to consider. I do not see anything speaking against the awarding of interest. But I note that I am confined to a 2% maximum interest rate pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 for claims against the state.
    
50. I will award interest on the total sum that is commencing from the date when the cause of action accrued to the date of judgment, that is from 4 November 2015 to 12 August 2020, and calculate it as follows:
    
    • Yearly interest on K36,365 damages (general damages for pain and suffering, general damages for malicious prosecution, damages for breach of constitutional rights, special and exemplary damages) = K2,909.20 (K36,365 x 0.02x4);
    • Monthly interest = K545.46 ((K723.30/12 x 9);
    • Weekly interest = nil (rounded off to the nearest month, ie 4 August 2020)
    • Total interest is K3,451.66 (made up of: K2,909.20 (04 November 2016 – 04 November 2019 – 4 years) + K545.46 (9 months, 04 November 2019 to 10 August 2020).
      
51. The total interest I award at 2% from the date the cause of action arose to the date of judgement is K3,451.66.
    

D CONCLUSION AND ORDERS

52. Since the police who committed the illegal actions were acting in the course of duty, and the plaintiff has pleaded that their employer is vicariously liable, I hold the State responsible for the damages awarded.
    
53. In consideration of the facts, the issues and the law, I make the following orders in relation to this matter:
    
    1. Fourth Defendant (the State) pay the plaintiff a total judgment sum of K39,816.66 being total damages for general damages, breach of constitutional rights, special damages, exemplary damages and interest.
    2. Interest is to accrue at the rate of 2% per annum for any amount not paid to the plaintiff within 30 days from this order.
    3. Fourth Defendant (the State) pay the plaintiffs costs of the entire proceedings, such costs to be taxed if not agreed

4. Time is abridged.

Judgment and Orders accordingly
_______________________________________________________________