N9828

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1424 OF 2004

KERRY NAMANE
Plaintiff

-V-

SERGEANT KAGAME
First Defendant

GARI BAKI, AS COMMISSIONER ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kariko, J
2020: 25th May

TRESPASS –unlawful assault by policemen – liability –causation

DAMAGES – assessment of – general and specific damages

The plaintiff claimed for damages for allegedly being assaulted by a policeman. He sought damages for the injuries sustained, and for breaches of his rights under s.36 (Freedom from inhuman treatment), s.41 (Proscribed acts) and s.42 (Liberty of the person) of the Constitution.

Held:

(1)	There was sufficient evidence to find the plaintiff was unlawfully assaulted by the first defendant, a policeman.
(2)	The State was vicariously liable as the first defendant as an employee of the State was on duty and acting within the scope of his employment.
(3)	The simple assault did not amount to breach of ss. 36, 41 or 42 of the Constitution.
(4)	General and special damages awarded.

Cases Cited:

Bolisa Figa v Willie Agong (2012) N4707
David Michael v Dennis Marus (2008) N3374
George Chapok v James Yali (2008) N3474 
George Kala v Joseph Kupo (2009) N3677
John Tindaka v David Kambu (2012) N4853
The State v David Wari Kofowei and Ors [1987] PNGLR 5

Legislation:

Constitution
Judicial Proceedings (Interest on Debts and Damages) Act 2015
Wrongs (Miscellaneous Provisions) Act, Ch.297

Counsel:

Mr M Mataing, for the Plaintiff
Mr J Kerenge, for the Defendants

TRIAL

This is a trial on liability and damages arising from an alleged assault by a policeman.

25th May, 2020

1.	KARIKO, J: In this proceeding, the plaintiff alleges that he was assaulted by a Sergeant Kagame at the Boroko Police Station on 29 March 2002, as a result of which he received bodily injuries, serious of which is loss of eyesight. He claims damages for the injuries sustained and for a breach of his constitutional rights. The Police Commissioner and the State are sued based on vicarious liability. 

2.	The matter was tried on both liability and damages.

EVIDENCE

3.	Only the plaintiff produced evidence at this trial. He called one Kokota Martin who gave oral testimony, while the following affidavits were tendered without objection:

(1)	Affidavit of Kerry Namane sworn on 18 April 2011 and filed on 26 April 2011 - Exhibit P1

(2)	Affidavit of Kerry Namane sworn on 1 June 2011 and filed on 24 June 2011- Exhibit P2

(3)	Affidavit of Dr. Apisai Kerek sworn on 11 October 2011 and filed on 12 October 2011 - Exhibit P3

(4)	Affidavit of Solomon Rotoho Jomane sworn on 31 August 2011 and filed on 1 September 2011 - Exhibit P4

SUMMARY OF FACTS

4.	A summary of the undisputed facts disclosed by the evidence is as follows:

(1)	On 29 March 2002, the plaintiff went to the Boroko Police Station to follow-up on the execution of a warrant of arrest on his debtor.
(2)	He was attended to at the duty counter by Sgt Kagame who became upset seemingly for being nagged by the plaintiff.
(3)	The Sergeant grabbed the plaintiff’s shirt and shouted at him, scaring the plaintiff to walk out of the station in fear of being assaulted. As it turned out, the Sergeant followed and hit him to the ground, then kicked him on the left side of his body and further punched on his face and head. 
(4)	The Plaintiff was taken to the Port Moresby General Hospital in a police vehicle where he was treated for his injuries, which included a swollen eye. 
(5)	The plaintiff developed problems with his eyesight and in February 2003, he attended the Eye Clinic at the Port Moresby General Hospital where he was seen by an eye specialist who confirmed the plaintiff had developed cataracts, a condition that causes cloudiness to the lenses in the eyes.
(6)	The plaintiff underwent eye surgery on 14 April 2003 as a result of which there was some improvement to his vision, but he was unable to continue operating his taxi business due to the state of his eyesight.

LIABILITY

5.	The plaintiff’s claims are based on the tort of trespass (assault) and breach of his human rights under the Constitution, namely:

•	s.36 (Freedom from inhuman treatment)
•	s.41 (Proscribed acts)
•	s.42 (Liberty of the person)
 
6.	The elements of a cause of action in trespass to the person, are that the defendant violated the plaintiff’s body and acted intentionally and unlawfully; David Michael v Dennis Marus (2008) N3374, John Tindaka v David Kambu (2012) N4853.

7.	I am satisfied on the evidence that the plaintiff was unlawfully assaulted by Sergeant Kagame on 29 March 2002. The evidence suggests that the assault was a result of the Sergeant apparently being irritated by the plaintiff’s persistent questioning as to when the Police might execute the warrant on his debtor. 

8.	I am not persuaded however that the plaintiff’s constitutional rights were breached as pleaded. A simple assault was inflicted on the plaintiff which does not interpret as inhuman treatment or torture which is what is intended to be covered by s.36. As regards s.41, it does not provide a right but merely allows the court to declare an otherwise lawful act or conduct as harsh and oppressive in the circumstances of a particular case. It has no application in the present matter. In relation to s.42, the plaintiff was not unlawfully or unreasonable detained so that provision does not benefit the plaintiff either.

9.	Vicarious liability of the State is described in section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch.297 which requires a plaintiff to prove the alleged tort complained of was committed by a servant or employee of the State while acting within the scope of his employment; The State v David Wari Kofowei and Ors [1987] PNGLR 5. 

10.	Sergeant Kagame, while attending to the general duties counter at the Boroko Police Station as a policeman, was an employee of the State then acting within the scope of his employment.  In those circumstances, the State is vicariously liable for the actions of Sergeant Kagame. The same cannot be ascribed to the Commissioner of Police as police officers are employees and servants of the State and not of the Commissioner.

DAMAGES

11.	When the plaintiff was taken to the hospital on the day of the assault, he was treated for bruising to his body and a swollen left eye and sent home. About a year later, he presented himself to the Eye Clinic at the Port Moresby General Hospital with issues regarding his eyesight. He was attended to by Dr. Apisai Kerek, an eye specialist, who confirmed that the plaintiff had developed cataracts in both of his eyes that significantly impaired his vision. Eye surgery was performed to address this condition. There was some improvement, but the plaintiff could no longer drive due to the impairment, and he ceased his taxi operations. 

12.	The plaintiff has claimed the following damages in relation to the assault:

•	General damages for pain and suffering
•	Special damages						
•	Economic loss								
•	Exemplary damages						

General damages

13.	In deciding general damages, it is critical that I decide whether or not the visual disability noted by Dr Kerek when he attended to the plaintiff in early 2003 was caused by Sergeant Kagame when he assaulted the plaintiff a year earlier on 29 March 2002. 

14.	A copy of the relevant clinic card shows that he presented himself at the hospital on 29 March 2002 (the day of the assault) with a swollen left eye and headache. It appears he was treated with panadol and amoxicillin (antibiotics). Clearly, the notes do not suggest the plaintiff sustained serious eye injury after the assault.

15.	According to Dr Kerek, his examination of the plaintiff in early 2003 confirmed that he had cataracts (clouding of his eyes). The Doctor opined the cataracts were due to ageing and he was unable to state that the assault had any impact on the visual impairment. 

16.	I deduce from the evidence that the cataracts were a natural consequence due to age (the plaintiff was then aged in his late forties), and I find that the assault had no bearing on this medical condition. After the assault, the nurse who attended the plaintiff did not observe the eye injury to be serious. The cataracts were diagnosed a year later, and it was noted that the condition affected both eyes and not only the eye (the left eye) that was injured following the assault. 

17.	In my view, the plaintiff is therefore entitled only entitled to general damages for the pain and suffering that resulted from the bruising to his body.  As comparable verdicts, I refer to the cases of George Kala v Joseph Kupo (2009) N3677; George Chapok v James Yali (2008) N3474 and Bolisa Figa v Willie Agong (2012) N4707: 

•	The Court awarded K5,000.00 as general damages to the plaintiff in George Kala v Joseph Kupo (supra) for pain and suffering following repeated assaults by police officers.  The plaintiff suffered swelling and bruises to his face and body with no permanent injuries. 
•	In George Chapok v James Yali (supra), the defendant punched the plaintiff causing him a bloodied nose and facial abrasions. There were no permanent injuries, and the plaintiff was not hospitalised. K5,000 was awarded as general damages. 
•	The plaintiff in Bolisa Figa v Willie Agong (supra) was assaulted by a group of policemen and he suffered a swollen face, and general pain to his face, ribs and legs. There were no permanent injuries and hospitalization was not necessary. K10,000 was awarded as general damages.

18.	I consider the sum of K8,000 to be a reasonable sum to award under this heading.

Special damages

19.	In relation to special damages, the plaintiff claims in his evidence, reimbursement of the following out-of-pocket expenses: 

•	Hospital fees			K50
•	Medication			K100
•	Transport			K80
•	Lens				K80

20.	While the plaintiff did not produce receipts relating to the expenses, it is obvious the costs of the medication and lens relate to the treatment for cataracts, so I would not allow them. I also accept that he would have incurred expenses to attend the hospital for treatment after the assault. Noting that the plaintiff lived at Sabama and attended a public hospital, I consider a total of K60 to be a reasonable sum to award for the three attendances at the hospital in early 2002. That is, I award K20 (transport costs plus hospital fees) for each attendance. 

Economic loss

21.	Because the cataracts were not a result of the assault by the plaintiff, I will not award damages for the economic loss claimed by the plaintiff for closing his taxi business due to his failing vision.

Exemplary damages

22.	Pursuant to s.12(1) Claims By and Against the State Act 1996:

“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.”

23.	This does not involve a breach of constitutional rights, so an award of exemplary damages is not a matter for consideration.
 
CONCLUSION

24.	Having found for the plaintiff against the State for the assault by Sgt Kagame, I award a total of K8,060 as damages, being for:

•	General damages			K8,000.00
•	Special damages			K60.00
 
INTEREST

25.	Interest is awarded pursuant to s. 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 at the rate of 2% per annum on the total amount of damages (K8,060.00) and it shall be calculated from 20 October 2004, being the date of filing the proceedings, to the date of this judgment, a period of 16.6 years. The amount of interest awarded is K8,060.00 x 0.02 x 16.6 = K2,675.92.

COSTS

26.	As the successful party, the plaintiff is awarded costs of this proceeding.

ORDER

27.	I accordingly order as follows:

(1)	Liability is found against the first and third defendants.
(2)	The State shall pay the plaintiff damages of K8,060.00 plus interest of K2,675.92, a total judgment sum of K10,735.92.
(3)	The State shall pay the plaintiff’s costs of this proceeding on a party-party basis, to be taxed if not agreed.

Mirupasi Lawyers: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants