N11004
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 995 OF 2014

BETWEEN
RYAN NOEL
Plaintiff

AND
KOPI KANATUPA, Senior Constable
First Defendant

AND
GEORGE BAYAGAU, Police Station
Commander, Alotau
Second Defendant

AND
JEFFERY BAKI, Commissioner of Police
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Alotau: Toliken J
2024: 	21st September

 DAMAGES – negligence – claim for - pain suffering and humiliation – future economic loss – special damages – interest and costs.

Cases Cited:

Limitopa v The State [1988-89] PNGLR 364
Bongri v The State [1987] PNGLR 478
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
MVIT v Tabanto [1995] PNGLR 214
Waima v MVIT [1992] PNGLR 254
MVIT v Pupune [1993] PNGLR 370
Tabie Mathias Koim and 28 Others v The State and Others[1998] PNGLR 247
Moka v MVIL (2004) SC729
Yooken Paklin v The State (2001) N2212
Albert Baine v The State (1995) N1335
Peter Wanis v Fred Sikiot and The State (1995) N1350
Yange Lagan and Others v The State (1995) N1369
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Michael Buna v The State (2004) N2696 
Komba v Duwaba [2006] PGNC 218; N2979
Pep v Yomba [1987] PNGLR 558
Eldik v MVIT (1994) N1257 
Koli v MVIT (1997) N1556
Oni v MVIT (2004) N2767
Kunumb v The State (2008) N3480
Jinamy v The State (2008) N3481
Kogun v Kolopen (2015) N5988
Kondal v Saul (2015) N5865

Counsel:	

T. Ilaisa, for the Plaintiff
Second Defendant, in person
Other Defendants, no appearance 

JUDGMENT

21st September 2024

1.	TOLIKEN J:  This a trial on assessment of damages after default judgment was entered against the defendants on 17 July 2015 by Kassman J. It is a personal injury claim as well as for human rights breaches.  I heard submissions on assessment of damages on 14 July 2016 and reserved my decision. This is my judgment. 

2.	At the hearing on assessment only the Plaintiff and his Lawyer Mr. Ilaisa appeared. The Second Defendant appeared but had nothing to say. The other defendants did not make any appearance though the Solicitor General is the Lawyer on record for the defendants.    

Background

3.	  On the afternoon of 17 April 2014, the Plaintiff was on his way back to his village of East Cape on a PMV named “Trans Kehelala 1.” At Gopaiya Village, the truck was stopped by policemen in a police vehicle bearing the Registration Number ZGC:921. The First Defendant proceeded to the back of the PMV and upon seeing the Plaintiff with a can of beer in his hand ordered him out of the vehicle.  The Plaintiff did as was told and as he was alighting from the vehicle the First Defendant punched him in the face. The Plaintiff fell off the trailer to the ground fracturing his left arm. 

Relief

4.	The Plaintiff claimed the following:

(a)	General Damages for negligence for pain, suffering and humiliation. 
(b)	Damages for breach of Constitutional rights under ss 36 (1) (Freedom from inhuman treatment) and 41 (Proscribed acts), 53 (Protection from unjust deprivation of property).
(c)	Damages for economic loss.
(d)	Exemplary damages.
(e)	Damages for suffering, mental distress and anxiety.
(f)	Special damages.
(g)	Interest.
(h)	Costs.
5.	  At the trial on assessment of damages, it appeared that the Plaintiff abandoned his claim for breach of human rights, exemplary damages, and damages for suffering, mental distress and anxiety. Trial proceeded thereafter on assessment of damages for:

•	pain, suffering and humiliation.
•	economic loss.
•	special damages.
Issues

6.	The issue for my determination therefore is whether the Plaintiff has proven his claim on the different heads of damages he is claiming under. 

Principles on Assessment of Damages

7.	Default judgment had been entered and the Plaintiffs have not challenged it in any meaningful way. Judgment on liability therefore stands undisturbed. 

8.	While it is settled that the court may revisit liability in appropriate cases, the instant case is not in my view one such case. I am satisfied that the facts and cause of action are pleaded with clarity hence liability has been proven on the required standard. There is therefore no need to revisit the issue of liability. (Mel v Pakalia (2005) SC790; Papua New Banking Corporation v Tole (2002) SC694).

9.	The entry of default judgment does not in itself, however, entitle the Plaintiff to receive damages as of right. He must still prove his damages with admissible and credible evidence. (Lalip v Sikiot (1996) N1457; Mel v Pakalia (supra). 

10.	Poole J aptly summarised this position in Kogun v Kolopen (2015) N5988 this way:
11. In many cases over the years the Courts of Papua New Guinea (both National and Supreme Courts) have stated the fundamental proposition of the consequences of a Default Judgement on liabilities. This is that, although legal liability is established by the Default Judgement, the Plaintiff is still required to prove to the Court, on the balance of probabilities, that it suffered loss – and the extent or value of that loss. 

11.	The principles of assessment of damage themselves are neatly summed up by the Supreme Court of in Mel v Pakalia (supra) (Los, Jalina and Cannings JJ). They are:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, Jalina J)
•	Corroboration of a claim is usually required, and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, Lenalia J)
•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, Woods J)
•	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, Injia J)
•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, Injia J.
•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, Woods J; MVIT v Pupune [1993] PNGLR 370, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, Injia J)
•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, Injia J.)
•	In (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, Jalina J also held that the court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (See also Michael Buna v The State (2004) N2696 (Cannings J) and Komba v Duwaba [2006] N2979, Cannings J)

Evidence

12.	The Plaintiff relied on his Affidavit in Support sworn on 21 August 2014 and filed on 22 August 2014. The Plaintiff’s evidence had not challenged or controverted in any way.

13.	 The Plaintiff deposed that he is from East Cape Village. On 17 April 2014, he traveled into town to have a few drinks with his mates at KB. On his way back the PMV he was on – “Trans Kehelala 1” – was stopped by a police patrol as they were approaching Gopaiya Village.  The police men were on a police vehicle bearing the Registration No. ZGC:921. On the vehicle were the following officers:

•	Constable jack Geda.
•	Senior Constable Kopi Kanatupa (First Defendant).
•	Auxiliary Policeman Junior Paison Budiara.
•	Auxiliary Policeman David Michael.

14.	The First Defendant went over to the PMV. He noticed that the Plaintiff had a can of beer in his hand. He ordered him to get off the truck and the Plaintiff obliged. But as he was getting down from the vehicle the First Defendant punched him in the face knocking him off balance.  He fell awkwardly down to the ground landing on hand to prevent himself landing on his head. As he landed, he felt a surge of pain up his left arm and let out a cry of pain. He instantly knew that something was wrong with his hand. The First Defendant continued to punch him in the head and kick him. 

15.	The Plaintiff’s brother who was also in the truck told the policemen that although the Plaintiff had the unopened can of beer, he had not been drinking. He asked them to let the Plaintiff proceed home with him, but the First Defendant apprehended him and threw him at the back of the police vehicle. 

16.	He was taken to the Alotau Police Station where he was locked up. Before locking him up he surrendered his basket. In the basket was his mobile phone and K60.00 cash. He was released the next day. His basket was returned but without his phone and money. When he enquired about his phone and money, he was told by officers that they did not see these items in his basket when they took it from him, but he knew that they were lying.

17.	 He was feeling intense pain in his left arm, and he knew that something was wrong with him. So, he decided to go the Alotau General Hospital where an X-ray was ordered. The X-ray revealed that he had a fracture arm. He paid K50.00 for the X-ray and consultation. He, however, was not able to produce the receipt of payment as he misplaced it. He later paid K5.00 for his medical report.  He attached the receipt of payment and the medical report to his affidavit (Annexures “A” and “B”).  He had a plaster of paris cast applied to his broken arm. He had this on for a month and 2 weeks before it was removed. He annexed photographs of himself in the cast. (Annexure “C”) 
18.	 The medical report dated 12 March 2014 by Dr. Siaelo Panta confirmed that on presentation the plaintiff’s left forearm was painful and swollen with some deformity. His left foot had some swelling and tenderness. An X-ray showed a fractured distil ulna bone. A full cast plaster was applied over the fractured forearm, and he put on analgesics with a plan to remove the cast on 6 June 2014. 
 
19.	Finally, the Plaintiff deposed that he spent a total of K110.00 in PMV fares between East Cape and Alotau at the rate of K20 per return trip for his medical checks. He also had to pay K1.00 from the bus stop to Middle Town where the hospital is at. 

Deliberations
Suffering, Pain and Humiliation

20.	Damages of this nature are intended to compensate a plaintiff for the pain, suffering, humiliation, distress and inconvenience because of the tortious actions of the defendant. They are an attempt to restore the plaintiff – as far as money can – to the same position he would have been had it not been for the wrongful action of the defendant. They are not punitive or intended to unjustly enrich the plaintiff. (Limitopa v The State [1988-89] PNGLR 364).

21.	 I am satisfied that the Plaintiff in the instant case was unlawfully assaulted for a minor traffic infringement by the First Defendant, who at the relevant time was a policeman – a servant of the State – acting within the scope of his employment as a policeman enforcing motor traffic rules. He sustained a fracture to his left ulna – the longer of the two bones in the forearm – when he landed awkwardly on his left hand when punched by the First Defendant. He was assaulted in the presence of fellow villagers and humiliated in the process. He suffered and had to endure the pain for about 24 hours before he was treated at the hospital with a plaster cast and painkillers which would have somehow reduced his pain. So, how much of an award should he get?

22.	Mr. Ilaisa submitted that the Plaintiff ought to be awarded damages in the K25,000.00. He cited the following cases for comparison –

No	Case	Award	
1	Pep v Yomba [1987] PNGLR 558
Plaintiff (24) employed as storekeeper
suffered severe injuries to her left forearm bone
 due to motor vehicle accident.	K15,000.00	
2	Bongri v The State [1987] PNGLR 478
The plaintiff in late 40s – unskilled worker 
employed in a removals business – job involved heavy lifting -Injured in motor vehicle accident - 100% loss of use of right arm 	K7500.00	
3	Eldik v MVIT (1994) N1257 
Plaintiff a single woman schoolteacher 
Sustain injuries to her hand in motor vehicle accident	K28,000.00	
4	Koli v MVIT (1997) N1556
Housewife & subsistence farmer (36) – injured left arm
During motor vehicle accident – 5% loss of use of right arm 	K10,000.00	
5	Oni v MVIT (2004) N2767
Plaintiff (23) suffered shoulder injury from motor vehicle
Accident – suffered 80% loss of use of right hand – married
And owned coffee and vegetable gardens 	K32,000.00	
6	Kunumb v The State (2008) N3480
Plaintiff (30) sustained injuries to 3 middle fingers when
Foot bridge construct by DOW collapsed sending him 
and others into river – Fingers amputated. 	K20,000.00	
7	Jinamy v The State (2008) N3481
Plaintiff (c.29) sustained injuries to left arm when footbridge 
Constructed by DOW collapsed sending him and others into
the river.	K14,000.00	
8	Kogun v Kolopen (2015) N5988
Plaintiff, a minor, shot by policeman on her leg
Suffered post traumatic anxiety 	K55,000.00	
9	Kondal v Saul (2015) N5865
Defendant drove vehicle at plaintiff after argument - Plaintiff sustained
permanent injury to right shoulder, arm and hand.	K15,000.00	
 
23.	There is no question that the Plaintiff must be compensated for the pain, suffering and humiliation he went through but there is no evidence as to any long-term effects of his injury or whether his injury was permanent. He makes no mention of such in his evidence, nor did he secure a second medical report. A second medical report is more valuable than the initial report as it can show whether the plaintiff is suffering from recuring issues associated with his injury and whether such injury is permanent. The fact that the plaster cast was removed only after 6 weeks appears to indicate the fracture may have been quite minor.   (Kondal v Saul (supra).

24.	 The Plaintiff’s injury is therefore not in my view as serious as those in the cases cited above. I accept that inflation is indeed high, and the buying power of the Kina is low – a factor that can appropriately be considered when assessing an award of damages. (Moka v MVIL (2004) SC729) I do not think, however, that an award of K25,000.00 is appropriate in the circumstances. I shall award K20,000.00 for this head of damages instead.

Future Economic Loss

25.	The Plaintiff submitted that he is entitled to K9000.00 for future economic loss. He is a villager and is not employed and readily acknowledged that it is difficult the financial losses he suffered or would continue to suffer because of the injury he suffered.

26.	Mr. Ilaisa submitted that a weekly loss of K5.00 as was done in Koli v MVIT (supra) would be a good starting point. Add inflation and a sum of K12.00 would be appropriate. Allowing a life expectancy of 55 years and subtracting 41 years (the Plaintiff’s age at trial) this should result in a life expectancy of 14 years. Future economic loss should therefore be K8736.00 (K12.00 x 52 weeks x 14 years) which should then be rounded up to K9000.00.
 
27.	I have great difficulty in awarding anything under this head for two simple reasons. First, the Plaintiff did not provide any evidence at all in his supporting affidavit about his earning capacity in his rural setting. Second and most importantly, there is no evidence that his injury is a permanent one and that his quality of life and ability to support himself has been seriously impaired, if at all.

28.	Future economic loss has not been proved to be the required standard. I therefore will not grant any award for this head of damages.

Special Damages

29.	Special or out of pocket damages must be strictly proved. The Plaintiff has provided a receipt for his medical report but not for the X-ray fee which he said was K50.00. He, however, provided evidence of photographs of himself with his left arm in cast plaster.  Is that sufficient prove that he paid the X-ray fee. I do not think that the hospital provides X-ray services for free. It should follow therefore that he did in fact pay the necessary hospital fee for an X-ray otherwise he would not have had the fracture to his left ulna detected. I will accept this claim.

30.	What about PMV fares from East Cape to Alotau and back? He has not provided any receipts for those as PMVs do not normally issue tickets. I also accept that he paid K50.00 to the Court to file his proceeding. The plaintiff deposed that the fare is K10.00 each way and he spent an add additional K2.00 each way to get from the PMV bus stop to the hospital at Middle town. He, however, does not say how many trips he took into town. Should that disqualify this claim. I shall exercise my discretion and allow this claim as I do not think that the sum of K110.00 for PMV fare is out of the ordinary. I award K215.00 for special damages.

Total Award

31.	I therefore award the following damages:

(1)	General damages for pain, suffering and humiliation -K20,000.00
(2)	Special damages –   K215.00				                       	Total = K20215.00 
Interest
32.	The Plaintiff is entitled to interest at the rate of 2% pursuant to Judicial Proceedings (Interest on Debts and Damages Act Ch. 52 (as amended). There is nothing that takes this case out of the ordinary. Interest shall be calculated from the date of accrual of the action (17 April 2014) to the date of judgment on assessment of damages (21 September 2024. 

33.	In calculating the amount interest, I adopt the formula formulated by Cannings J in cases like Kolokol (supra) and Meta (supra) which is:

Damages assessed x Interest rate x Number of years = Amount of Interest
K20,215.00 x 2% x 11.05 = K4467.51

34.	The interest to be paid shall therefore be K4467.51. The total award shall therefore be K24,682.51. This shall be paid by the Fourth Defendant.
Costs
35.	 Cost shall follow the event on a party/party basis.

JUDGMENT
36.	I direct judgment to be entered for the Plaintiff in the following terms:

1.	The Fourth Defendant (State) shall pay to the Plaintiff the sum of K20, 215.00 for damages.
2.	The Fourth Defendant shall pay interest in the sum of K4, 467.51
3.	 The Fourth Defendant shall pay the Plaintiff’s costs on a party/party basis which shall be taxed if not agreed upon.
Ordered accordingly.
________________________________________________________________
The Public Solicitor: Lawyers for the Plaintiff		
The Solicitor General: Lawyers for the Defendants