N8971
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 240 OF 2013

 BETWEEN
FRANK LEME
Plaintiff
AND
CONSTABLES BRIAN WINNIE, LAKI TUTE, TOKSY NEMA & ALLAN KUNJIL
 First Defendants

AND
INSPECTOR DAVID SEINE
 Second Defendant

AND
CHIEF INSPECTOR SAMSON KUA, as HIGHLANDS MOBILE SQUAD COMMANDER
 Third Defendant

AND
DAVID MANNING as DIRECTOR MOBILE SQUARD (SPECIAL SERVICES DIVISION)
 Fourth Defendant

AND
TOM KULUNGA, POLICE COMMISSIONER
 Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
 Sixth Defendant

Waigani:  Makail, J
2021:  22nd June & 2nd August

LIABILITY – Tort of trespass – Assault by members of police – Act of assault in the course of employment – Vicarious liability – Liability established – Wrongs Miscellaneous (Provisions) Act, Ch 297 – Section 1 

ASSESSMENT OF DAMAGES – Adequacy of damages – General damages for pain and suffering – Special damages for medical costs – Exemplary damages against tortfeasors – Proof of 

Facts

This is an action for trespass to person following an alleged assault of the plaintiff by members of the police identified as the first defendants on 24th May 2012 between the hours of 6:00 and 7:00 pm at the Waigani National and Supreme Courts precincts. The sixth defendant filed a defence and while not denying the assault of the plaintiff, denied that it is vicariously liable for the actions of the first and second defendants on the basis that they had acted outside their scope of duties or it was unauthorised.

Held:

1.	On the instructions of the second defendant, the first defendants assaulted the plaintiff during the course of their duties and it was an authorised operations.  The sixth defendant is vicariously liable for their actions and/or omissions under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

2.	The plaintiff suffered head, body and tooth injuries, loss of blood and a permanent scar on his forehead with no evidence of permanent disabilities or loss of body function.

3.	General damages inclusive of inflation is assessed at K29,000.00 for pain and suffering.
  
4.	As special damages require strict proof, there is no evidence to prove the sum claimed for medical costs.  A nominal sum of K1,000.00 is awarded.

5.	Exemplary damages is awarded against the first and second defendants in the sum of K2,000.00 each and against the sixth defendant in the sum of K5,000.00. 

Cases Cited:

James Gunambo & John Pok v. Sergeant Thomas John Upaiga & The State (2010) N3859
Losia Mesa v. The State (2009) N3681
Ronald Iagoro v. Max Yalong & The State (2009) N3642
Andrew Moka v. Motor Vehicles Insurance Limited (2004) SC729
Bau v. Karl (2010) N4123

 Counsel:

Mr. L. Tangua with Mr. J. D. Lyipit, for Plaintiff 
No appearance, for First, Second, Third, Fourth & Fifth Defendants
Ms. P. Ohuma, for Sixth Defendant

JUDGMENT

2ndAugust, 2021

1.	MAKAIL J: This is an action for trespass to person following an alleged assault of the plaintiff by members of the police identified as the first and second defendants on 24th May 2012 between the hours of 6:00 and 7:00 pm at the Waigani National and Supreme Courts precincts.

2.	The sixth defendant filed a defence and while not denying the assault of the plaintiff, denied that it is vicariously liable for the actions of the first and second defendants on the basis that they had acted outside their scope of duties or it was unauthorised.  

Liability

3.	The sixth defendant’s liability is not wholly independent from its servants and agents and the onus of proof is on the plaintiff to establish that the sixth defendant is vicariously liable for the actions and/or omissions of its servants and agents, in this case, the first defendants pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

4.	Based on the affidavit in support of the plaintiff sworn and filed 17th May 2013 including medical report from Port Moresby General Hospital dated 24th October 2012 and photographs of head and body injuries, affidavit in Support of James Epi sworn and filed 17th May 2013, affidavit in support of Joseph Tondop sworn and filed 17th May 2013, affidavit of David Dotaona sworn 3rd August 2018 and filed 17th August 2018, affidavit of the plaintiff sworn 10th June 2021 and filed 11th June 2021 and affidavit in support of Sergeant David Joel sworn and filed 27th April 2018, I make the following findings of fact:

•	The plaintiff is a member of the police based in the National Capital District.  On the evening of 24th May 2012 between 6 o’clock and 7 o’clock he accompanied the former NCD Metropolitan Superintendent Joseph Tondop and one other in a motor vehicle to the Waigani National and Supreme Court precincts to pick a lawyer named David Dotaona who was representing the former Deputy Commissioner of Police Mr Fred Yakasa and trapped inside the Court house following the arrest of the former Chief Justice Sir Salamo Injia earlier that afternoon.  

•	After they picked up the lawyer, they drove out of the court precincts and were stopped by the first defendants in the presence of the second, third and fourth defendants.  They were told that they were siding with the former Chief Justice.  A body search was conducted on them and then they were physically removed from the motor vehicle and pushed onto the gravel on the side of the road.  The plaintiff was dragged along the gravel.  

•	The first defendants struck the plaintiff on his head with a butt of a gun, kicked him with their boots and threw him on the ground.  They did the same to Mr Tondop, lawyer Mr Dotaona and the other passenger.  

•	As a result of the assault, the plaintiff sustained the following injuries:

Deep lacerations/cuts to his face, mouth and lips.
Two loose teeth.
Loss of blood.
The plaintiff was unable to eat for a month and was bedridden. 
Memory loss for several weeks.
Permanent scar to his forehead.

5.	As to whether the sixth defendant is vicariously liable for the actions and/or omissions of the first, second, third and fourth defendants, the plaintiff submitted that these defendants were on duty providing security during the political impasse of 2011/2012 and arrest of the former Chief Justice.  Thus, the act of assault occurred during the course of their duties and the sixth defendant should be held vicariously liable.

6.	The sixth defendant submitted that the actions and/or omissions of the first, second, third and fourth defendants were outside the scope of their duties and it did not sanction them.  These defendants went on a frolic and it should not be held vicariously liable for their actions and/or omissions.

7.	The facts as found above show that the first to the fourth defendants were on duty at the Court precincts at the time when the former Chief Justice was arrested.  They were not on a frolic as contended by the sixth defendant.  The purpose of their presence was to maintain peace and order for the good of the general public.  It was an authorised operation.  In the process, the first defendants stopped the plaintiff and companions and assaulted them after conducting a body search on the instructions of the second defendant.  Whether the motive for the assault was because the plaintiff and his companions sided with the former Chief Justice is irrelevant.  They simply had no right to assault the plaintiff.  

8.	For these reasons, I uphold the submissions of the plaintiff and find that the first and second defendants assaulted the plaintiff during the course of their duties and it was an authorised operation.  I further find the sixth defendant vicariously liable under Section 1 of the Wrongs (Miscellaneous Provisions) Act Ch 297.  Judgment on liability is entered against the defendants.

Assessment of Damages

9.	As liability has been established, the next question is the appropriate sum of damages to award for general damages for pain and suffering, special damages for medical costs and exemplary damages.  The onus of proving his damages still rest on the plaintiff.

General damages

10.	The plaintiff submitted that K55,000.00 would be a fair and reasonable sum to award.  The sixth defendant submitted a sum between K10,000.00 to K15,000.00.

11.	The nature of assault where the first defendants used a gun-butt and boots to strike the plaintiff on his face and body when he was unarmed and defenceless must put this case at the top end of the most serious case of assault.  The actions of the first defendants and the second defendant must be condemned in the strongest term as possible.  This was truly a cowardly act, unprovoked and unjustified and warranted a higher award of damages to compensate and put the plaintiff as far as money can do, for his pain and suffering.  

12.	The extent of the injuries is quite serious.  As found, he sustained the following injuries:

Deep lacerations/cuts to his face, mouth and lips,
Two loose teeth,
Loss of blood.
13.	In addition, he was unable to eat for a month and was bedridden. He suffered memory loss for several weeks and lives with a permanent scar on his forehead.

14.	In James Gunambo & John Pok v. Sergeant Thomas John Upaiga & The State (2010) N3859, the plaintiffs were repeatedly assaulted by members of the police and suffered facial injuries, back, cheek and groin injuries including post-concussion syndrome.  The plaintiffs were awarded K18,000.00 and K14,000.00 respectively as general damages for pain and suffering.

15.	In Losia Mesa v. The State (2009) N3681, 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.  They also assaulted him on arrival at the station.  He suffered multiple soft tissue facial injuries and eye injury, leading to blurred vision and reduced visual acuity.  He was awarded K25,000.00.  

16.	In another case of Ronald Iagoro v. Max Yalong & The State (2009) N3642 the first defendant policeman struck the plaintiff on his face with a barrel of a gun, and kicked and punched the plaintiff.  He fired a shot terrifying the plaintiff and caused severe damage to his eardrum.  The plaintiff suffered 38% body impairment.  He was awarded K40,000.00 as general damages for pain and suffering.

17.	Having considered the injuries sustained by the plaintiffs and the awards made in the above two cases and comparing them with this case, I am of the view that an award between K20,000.00 and K25,000.00 would be within range.  As the plaintiff Losia Mesa suffered reduced visual acuity as opposed to the plaintiff who suffered no such vision impairment, the sum awarded will be less than K25,000.00.  Additionally, there is no evidence of permanent disability or loss of body function like in the Ronald Iagoro case which would attract a sum of up to K40,000.00.  I award K24,000.00.  

18.	The plaintiff further submitted that there should be an additional sum to cover for inflation based on the Supreme Court decision in Andrew Moka v. Motor Vehicles Insurance Limited (2004) SC729.  I accept this submission.  The awards in the past cases cited above were decided about 10 to 12 years ago.  I add K5,000.00 for inflation and the final sum awarded is K29,000.00.

Special damages

19.	According to the statement of claim, the plaintiff claimed a sum of K50,000.00 for special damages.  The defendants objected to this claim because it has not been particularised in the statement of claim.  However, there is adequate information at [20(c)] of the statement of claim that the plaintiff seeks “K50,000.00 spent to nurse his wound and other unnecessary expenses that he had to dig dipper (sic) into his pocket to alleviate his impacted wounds and other consequences……”.

20.	The real issue is its proof because special damages require strict proof.  Where the plaintiff is claiming reimbursement of medical costs, he must provide copies of invoices and receipts of payments.  The plaintiff did not produce evidence of invoices and receipts of payments to prove that he incurred medical costs up to K50,000.00.  Nonetheless, I can see that he has produced a medical report from the Port Moresby General Hospital and so he has incurred some unspecified costs for his recovery.  I award K1,000.00 as nominal damages.

Exemplary damages

21.	The plaintiff claimed exemplary damages against the sixth defendant because of the actions of the first and second defendants and members of the police.  It is common ground between the parties that it is one of the discretionary relief which may be awarded and has a compensatory element which is intended to punish the defendants and serve as a moral retribution and deterrence.  I endorse the parties’ position.

22.	In this case, I am satisfied that the actions of the members of the police led by the first and second defendants “involved a significant and unwarranted departure from the proper exercise of police powers….”. Bau v. Karl (2010) N4123.  The facts of this case warrant an award of exemplary damages against these defendants as primary tortfeasors.  This will send a clear message to the other members of the police to refrain from engaging in this type of conduct in future.  Members of the police as officers of the sixth defendant are supposed to protect lives and properties and not the other way around.  As I found on liability, the first and second defendants were on authorised or sanctioned operation, hence the sixth defendant is vicariously liable for exemplary damages.

23.	Five of the members of the police have been identified in the first and second defendants.  These members of the police have not filed any responding affidavits to refute the assertion by the plaintiff that they attacked him.  Given, this, it is equally fair that they too must be ordered to pay exemplary damages for attacking him.  They are ordered to personally pay to the plaintiff a sum of K2,000.00 each, giving a total of K10,000.00.  As to the sixth defendant, it is ordered to pay a sum of K5,000.00 to the plaintiff as exemplary damages. 

Interests

24.	It is common ground between the parties that the rate of interest to award on damages is 2% pursuant to Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.  The real issue is when should interest run and whether it will be on whole or part of the sum awarded.

25.	While it is noted that the State Claims Court Track One has a huge backlog of pending cases, there is no explanation by the plaintiff in relation to the long delay in getting this ligation to trial after close of pleadings.  For this reason, pre-judgment interest is awarded from the date of trial of 22nd June 2021 to the date of judgment which shall be calculated by the parties.  As to post-judgment interest, it is awarded at the rate of 2% from the date of judgment on liability until final settlement pursuant to Section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.  The 2% pre-judgment interest and post judgment interest are awarded on part of the total sum of damages awarded which is K30,000.00.  This sum comprises of general damages and nominal damages.  The award of exemplary damages is excluded.  

Legal costs

26.	An award of costs is discretionary.  Generally, it is awarded to the successful party, in this case, the plaintiff.  As the plaintiff has successfully proven most of the heads of damages, costs are awarded to him, to be taxed, if not agreed.

Order

27.	The final orders of the Court are:

1.	Judgment is entered against the defendants in the total sum of K30,000.00.

2.	The first defendants shall each personally pay exemplary damages in the sum of K2,000.00 to the plaintiff forthwith.	

3.	The second defendant shall personally pay exemplary damages in the sum of K2,000.00 to the plaintiff forthwith.	

4.	The sixth defendant shall pay exemplary damages in the sum of K5,000.00 to the plaintiff forthwith.	

5.	The defendants shall pay pre-judgment interest and post-judgment interest at the rate of 2% from the date of trial to the date of judgment and until final settlement on the sum of K30,000.00 pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

6.	The defendants shall pay the plaintiff’s costs of the proceeding, to be taxed, if not agreed.
________________________________________________________________
Tangua Lawyers:	Lawyers for Plaintiff
Solicitor General:	Lawyers for Sixth Defendant