N9205

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.1141OF 2019

BETWEEN
SAKI SAKA
Plaintiff
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani:  Makail, J
2021:  20th July &11th October

LIABILITY – Tort of negligence – Negligent discharge of firearm by identified member of police –Tort committed in the course of employment – Vicarious liability – Liability established – Wrongs (Miscellaneous Provisions) Act, Ch 297 – Section 1 

LIABILITY – Tort of false imprisonment – Detention at Police Station –Apprehended for assault and breach of peace – Probable cause – Liability not established 

ASSESSMENT OF DAMAGES – Award of damages – General damages for pain and suffering – Special damages for medical costs not sought – Exemplary damages against tortfeasors not sought – No award made for special and exemplary damages

Facts

This is an action based on negligence and false imprisonment.  The plaintiff was forcefully removed from his home in the middle of the night by member of the Police and taken to the Police Station where he was detained in a cell with another member of the Police.  He was not arrested and charged with any offence.  While he was waiting, one of the members of the Police entered the cell armed with a firearm and shot the other member of the Police who was detained for an unrelated reason.  The latter ducked his head and missed the bullet.  The bullet struck the concrete wall, ricocheted, and struck the plaintiff on the upper back near his head. 

Held:

1.	A member of Police who is armed with a firearm owed a duty of care to the plaintiff to keep the firearm safe, keep proper lookout for persons and exercise care when discharging it.  By discharging the firearm in the manner, he did, he breached that duty of care.  As a result, the plaintiff was wounded. The plaintiff has established the action based on negligence.

2.	The identified members of the Police were acting in the course of their duties when they apprehended the plaintiff and took him to the Police Station where he was detained for assault and breach of peace.  While being detained, he was struck by a bullet discharged from a firearm by an identified member of the Police and the defendant is vicariously liable for their actions and/or omissions under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

3.	One of the elements of the tort of false imprisonment is probable cause.  The plaintiff was suspected of assault and breach of peace and was detained.  The plaintiff failed to establish that his detention at the Police Station is without cause and unlawful.  Accordingly, the action based on false imprisonment is dismissed.

4.	General damages inclusive of inflation is assessed at K50,000.00 for pain and suffering.  

5.	As the plaintiff did not plead and seek special damages for medical costs and exemplary damages in the prayer for relief in the statement of claim, no awards are made.

Cases Cited:

Kolokol v. Amburuapi (2009) N3571
Jessie Namba v. The State (2011) N4396
Kipahi v. Nambos (2020) N8437
Andrew Moka v. Motor Vehicles Insurance Limited (2004) SC729
Robert Taropen & Ors v. John Anawe & The State (2010) N3911

Counsel:

Mr. J. Tame, for Plaintiff 
Ms. P. Ohuma, for Defendant

JUDGMENT

11th October, 2021

1.	MAKAIL J: This is an action based on negligence and false imprisonment.  As to the first, it is based on the negligent discharge of a firearm by an identified member of the Police in what appeared to be a bizarre circumstance.  The allegation is that, the plaintiff was forcibly removed from his house while he was asleep in the middle of the night between 10 and 11 on 23rd November 2018 at Burns Peak and taken to the Hohola Police Station.  He was put in the cell.  In the cell was a member of the Police identified as Israel Bill.  This policeman was locked up by other identified members of the Police for an unrelated reason.  One of the members of the Police identified as Constable Steven Siski entered the cell armed with a Carbin 9 mm semi-automatic rifle and shot Israel Bill.  The latter ducked his head and missed the bullet.  The bullet struck the concrete wall, ricocheted, and struck the plaintiff on his upper back near his head.  He was rushed to the hospital and later diagnosed with:

•	Body Pain,
•	Restricted motion of right forearm,
•	Numbness of upper limbs, and
•	Bleeding from wound.
2.	For the false imprisonment, the plaintiff alleged that he was detained for some time in the cell without being arrested and charged with an offence. 

3.	The defendant filed a defence.  It did not deny that the plaintiff was wounded by a bullet discharged from a firearm by Constable Steven Siski and that he was detained without being arrested and charged.  However, it is denying liability on the grounds that the actions of Constable Steven Siski were criminal in nature and beyond the duty imposed on him as a member of the Police and the defendant should not be held vicariously liable.  As to false imprisonment, the defendant should not be held vicariously liable because the plaintiff was suspected and apprehended for assault, being drunk and a public nuisance and brought to the Police Station to recover before being arrested and charged.  While he was waiting, he was accidently shot.  

Evidence

4.	The plaintiff relied on his affidavit sworn and filed on 9th March 2020.  The defendant relied on two affidavits, one by Constable Paul Makara sworn and filed on 5th June 2020 and the other by Sergeant David Joel sworn and filed on 5th June 2020.

Liability

5.	The 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 defendant is vicariously liable for the actions and/or omissions of its servants and agents, in this case, the identified members of Police including Constable Steven Siski pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

6.	The affidavit of Sergeant David Joel is not relevant to the events of 23rd November 2018 at Hohola Police Station.  It is relevant in relation to policy and operational matters of the Police Force.  As to the affidavit of the plaintiff and affidavit of Constable Paul Makara, there is not much factual dispute and it is the finding of the Court that the common facts are, the plaintiff was taken to the Hohola Police Station in the middle of the night between 10 and 11 on 23rd November 2018 by Constable Paul Makara, Reserve Constable Pepi Pombua, Constable Kiro Tau and Constable Steven Siski.  He was placed in the cell.  In the cell was another member of the Police identified as Israel Bill who was detained for an unrelated reason.  This policeman was locked up by these identified members of the Police.  

7.	One of the members identified as Constable Steven Siski entered the cell armed with a Carbin 9 mm semi-automatic rifle and shot Israel Bill.  The latter ducked his head and missed the bullet.  The bullet ricocheted from the concrete wall and struck the plaintiff on his upper back near the head.  He was rushed to the hospital and later diagnosed with:

•	Body Pain,
•	Restricted motion of right forearm,
•	Numbness of right upper limbs, and
•	Bleeding from wounds.
8.	The plaintiff asserted that he was forcefully removed from his house and taken to the Police Station for no reason.  Constable Paul Makara asserted that the plaintiff was taken to the Police Station because he was drunk and a public nuisance.  He assaulted a person named Richard and this person made a complaint to the police.  Applying logic and common-sense, there must be a probable cause for the actions of the Police.

9.	In this case, it does not make sense for members of the Police to take the plaintiff to the Police Station and detain him without cause.  The logical and common-sense inference open to find is what Constable Paul Makara has asserted and that is, the plaintiff was drunk and a nuisance.  He assaulted a person named Richard.  Richard made a complaint to the police and members of the Police apprehended and took him to the Police Station.  He was not arrested and charged right away because he was drunk and was allowed to recover.  While the police were waiting for him to recover, he was wounded by the stray bullet discharged from the firearm by Constable Siski.  

10.	As to whether the defendant is vicariously liable for the actions and/or omissions of the identified members of the Police, counsel for the plaintiff submitted that identified members of the Police were on duty when they detained the plaintiff in the cell and the plaintiff was injured by the negligent discharged of a firearm by Constable Siski during the course of their duties and the defendant should be held vicariously liable.

11.	Counsel for the defendant submitted that the actions and/or omissions of the identified members of the Police, in particular Constable Siski were outside the scope of their duties and the defendant did not sanction them.  This is further reinforced by Sergeant David Joel who asserted that standard policing and operational requirements did not allow or sanctioned the conduct of Constable Siski.  The discharge of the firearm was criminal in nature and beyond the scope of duties of the members of the Police and the defendant should not be held vicariously liable for their actions and/or omissions.

12.	The facts as found above show that the identified members of the Police were on duty that night when they apprehended and detained the plaintiff at the Police Station for assault and breach of peace (drunk).  In the process, the plaintiff was struck and wounded by the bullet from the firearm discharged by Constable Siski.  As the person armed with a firearm, Constable Siski owed a duty of care to the plaintiff to keep the firearm safe, keep proper look out for persons and exercise care when discharging it.  By discharging the firearm in the manner, he did, he breached that duty of care.  As a result, the plaintiff was wounded.  The plaintiff has established the action based on negligence.  Accordingly, judgment on liability is entered against the defendant. 

13.	As to the action based on false imprisonment, one of the elements of the tort of false imprisonment is probable cause.  The plaintiff was suspected of assault and breach of peace and was detained.  In addition, there was good cause why the plaintiff was not arrested and charged after he was detained.  He was drunk.  He was given time to recover before he could be arrested and charged.  Unfortunately, while waiting, he was wounded by the stray bullet from the firearm.  For this reason, the plaintiff has failed to establish that his detention at the Police Station was without probable cause and unlawful.  The action based on false imprisonment is dismissed.

Assessment of Damages

14.	As liability has been established in relation to the action based on negligence, the next question is the appropriate sum to award for general damages for pain and suffering.  The plaintiff sought no damages for medical costs and exemplary damages in the prayer for relief in the statement of claim.  Accordingly, no awards will be made for special and exemplary damages.

General damages for pain and suffering

15.	For pain and suffering, the plaintiff submitted that K80,000.00 would be a fair and reasonable sum to award.  The defendant submitted a sum of K20,000.00 is appropriate to compensate the plaintiff for the injuries sustained from the gun shot.

16.	The defence did not object to the veracity of the Medical Report by Dr. Sonny Kibob of Port Moresby General Hospital dated 17th January 2019.  According to the report, on clinic examination the following findings were made:

•	Hemodynamically stable and in a lot of discomfort,
•	Gunshot wound to the right forearm and the posterior scalp,
•	Loss of sensation of right upper limb, 
•	Marked reduction in the extension and flexion of the right forearm at the elbow joint and
•	Bleeding from the wound.
17.	In addition, he was assessed at having suffered 90% effective use of his left upper limb.

18.	It is preferred that awarded by the Court in past cases on loss of upper limbs or efficient use of upper limbs from Police shooting be used as a guide to assess damages for pain and suffering.  Adopting this method, most of the cases cited by counsel for the plaintiff and counsel for the defendant do arise from unlawful or negligent police shooting and are disregarded.  The relevant ones are Kolokol v. Amburuapi (2009) N3571, where the plaintiff, a young man in his 20s suffered a gunshot wound to his left leg by a rogue policeman.  He was awarded K25,000.00.

19.	In Jessie Namba v. The State (2011) N4396, the plaintiff was shot in the leg by the police, for no good reason.  He was detained in custody and then taken to the hospital and his leg was amputated below the knee.  Given the seriousness of the injury and ability of the plaintiff to move around, the Court awarded a sum of K150,000.00.

20.	Recently, in Kipahi v. Nambos (2020) N8437 the Court awarded K20,000.00 to the plaintiff who was shot with a gun, was hospitalised and had been left with a 15% residue disability which is an ongoing discomfort and restriction on the full use and enjoyment of the affected part of the body.

21.	In this case, the plaintiff has ongoing discomfort, loss of sensation of upper right limbs, reduction in the extension and flexion of the right forearm at elbow joint and bleeding from the wounds.  Finally, he suffered a 90% loss of effective use of left upper limb.  These conditions put this case in the middle range between the awards made in Kipahi v. Nambos (supra) (K20,000.00) and Jessie Namba v. The State (supra) (K150,000.00).  The difference between this case and Jessie Namba v. The State (supra) is that the plaintiff in this case did not have any of his limbs amputated.  A reasonable sum is K45,000.00.  

22.	The counsel for 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.  This submission is accepted.  K5,000.00 for inflation is added and the final sum awarded is K50,000.00.

General damages for breach of constitutional rights

23.	Relying on Robert Taropen & Ors v. John Anawe & The State (2010) N3911 where the Court awarded general damages for breach of constitutional rights in addition to damages for trespass to property in a police raid setting, the counsel for the plaintiff submitted that there should be an award of general damages for breach of the plaintiff’s constitutional rights, in particular, right to freedom from inhuman treatment under Section 36 of the Constitution.

24.	Damages for breach of constitutional rights will be awarded in cases where the tortuous conduct is intentional, deliberate and a complete disregard to the rights and freedoms of the injured party.  It is for this reason that the case of Robert Taropen & Ors (supra) is distinguished.  In this case, the facts as found on the evidence of the plaintiff and Constable Paul Makara do not establish that Constable Siski intended to shoot and wound the plaintiff.  It was accidental but a result of negligent conduct by Constable Siski.  For these reasons, the claim for damages for breach of constitutional rights is not made out and is refused.

Interests

25.	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.  It is also common ground that pre-judgment interest is awarded from the date of issue of writ to date of judgment.  As to post-judgment interest, it is awarded at the rate of 2% from the date of judgment 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 the judgment sum of K50,000.00.  

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 established liability in relation to the action based on negligence and damages, he shall be awarded costs of the proceedings, to be taxed, if not agreed.

Order

27.	The final orders of the Court are:

1.	Liability is entered against the defendant in relation to the action based on negligence.	

2.	The action based on tort of false imprisonment is dismissed forthwith.	

3.	Judgment is entered against the defendant in the sum of K50,000.00 as general damages for pain and suffering.

4.	The defendant shall pay pre-judgment interest and post-judgment interest at the rate of 2% from the date of issue of writ to the date of judgment and until final settlement on the judgment sum of K50,000.00 pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

5.	The defendant shall pay the plaintiff’s costs of the proceedings, to be taxed, if not agreed.

________________________________________________________________
Solomon Wanis Lawyers: Lawyers for Plaintiff
Solicitor General:	Lawyers for Defendant