N11006
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 11 OF 2016

BETWEEN
JOHN KAWANAMO
Plaintiff

AND
PATRICK SODE - Sergeant
First Defendant

AND
JEFFERY Vaki, Commissioner of Police
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Alotau: Toliken J
2024:	21st September

DAMAGES – assessment of damages after default judgment –breach of human/constitutional rights – exemplary damages – other heads of damages claimed not proven or abandoned.

Cases Cited:

Mel v Pakalia (2005) SC790
Papua New Banking Corporation v Tole (2002) SC694
Lalip v Sikiot (1996) N1457
Yooken Paklin v The State (2001) N2212
Albert Baine v The State (1995) N1335
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
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
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
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
Kolokol v Ambuaruapi (2009) N3571
Meta v Independent State of Papua New Guinea (2012) N4735
Westcot v Motor Vehicles Insurance Ltd (2008) N3565
Latham v Peni [1997] PNGLR 435
Abel Tomba v The State (1997) SC518 
Kakipa v Nikilli (2002) N5689
Namba v Naru (2011) N4396 
Wiwa v State (2012) N5271

Counsel:	

T Ilaisa, for the Plaintiffs
M Pepi, for the Defendants

JUDGMENT

21st September 2024

1.	TOLIKEN J:	 This a trial on assessment of damages after default judgment was entered against the defendants on 25th October 2017.

2.	 The First Defendant is a serving police officer and primary tortfeasor.  He was found liable for breaching the plaintiff’s guaranteed human rights under Sections 36 (1) and 53 of the Constitution whilst performing his duties as a police and servant of the Third Defendant. The Second Defendant is the Commissioner of Police. Third Defendant is the State and was found to be vicariously liable for the actions of its servant.

Background Facts

3.	  In January 2013, the Plaintiff was employed as Captain of the vessel MV Goodenough (vessel), purchased with public funds by then Member for Kirriwina/Goodenough Hon. Jack Cameron for his Electorate.
4.	On 10 January 2013 the Plaintiff brought the vessel into the Sanderson Bay, Alotau, laden with passengers from the Electorate and berthed in the bay.

5.	The First Defendant led a group of people including some reserve policemen down to Sanderson Bay to meet the vessel. Among them were Jerome Unafola (Chairman of Transport – Goodenough Local Level Government (GRLLG), Ronald Yaneku (OIC – Forensics, Port Moresby) and CID Officer Patrick Wallace. They called for a dinghy to be brought over to them and the Plaintiff sent a dinghy over. At that time the passengers were yet to disembark.  When the First Defendant’s party boarded the vessel, Ronald Yaneku approached the captain’s cabin where the Plaintiff was and punched him in the face and then hit him with the butt of his gun.  The First Defendant and Jerome Unafola joined in. They punched and verbally harassed the Plaintiff in the presence of his crew and passengers.

6.	 The First Defendant demanded that the Plaintiff hand over the cash box and its keys. In fear of his safety the Plaintiff handed the cash box over. The First Defendant, Roland Yaneku and Jerome Unafola then continued to punch the Plaintiff and he fell back, face up on the deck. At that moment, Ronald Yaneku attempted to load his gun with a bullet to shoot the Plaintiff, but the Plaintiff quickly stood up and knocked the bullet off Yaneku’s hand and it fell to the deck and into the sea.

7.	The Plaintiff was by then bleeding from his face and mouth. The First Defendant and his group ordered the Plaintiff to stay out of the captain’s cabin.  Apparently, they had brought someone with them whom they said was going to be the new Captain.

8.	The First defendant and Yaneku then attempted to tie the Plaintiff with ropes saying that they take him back to Bolubolu on Goodenough Island, but the Plaintiff immediately jumped into the sea and swam toward town. As soon as he came ashore, he proceeded straight to the Police Station and laid a complaint against the First Defendant, Ronald Yaneku and Jerome Unafola before a female police officer who was on duty.  The First Defendant, Ronald Yaneku and Jerome Unafola were never arrested.

9.	The Plaintiff later attended the Alotau General Hospital where he was seen and treated by Dr. William Mataio. The Doctor’s report dated 13 May 2023 showed that the Plaintiff sustained the following injuries:
•	Head laceration measuring 5 cm x 1 cm on left lateral aspect of scalp, bleeding.
•	Tenderness at both sides of jaw and swollen lips.
•	Swollen right wrist and hand with limited range of movement.

RELIEF CLAIMED
10.	The Plaintiff claimed the following:

(a)	 Damages for breach of Constitutional (human) rights under ss 36 (1) (Freedom from inhuman treatment) and 41 (Proscribed acts), 53 (Protection from unjust deprivation of property).
(b)	Damages for economic loss.
(c)	Exemplary damages.
(d)	Damages for suffering, mental distress and anxiety.
(e)	Special damages
(f)	Interest.
(g)	 Costs.

ISSUES

11.	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

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

13.	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).

14.	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).  

15.	These principles of assessment of damage are neatly summed up by the Supreme Court 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] PGNC 218; N2979, Cannings J)

EVIDENCE

16.	The Plaintiff relied on his Affidavit in Support sworn on 17 October 2017 and filed on 18 October 2017.The Plaintiff’s evidence was not challenged or controverted in any way  The sum of his evidence is summarized above in the background facts. 

DELIBERATIONS

17.	 At this juncture I need to mention that the Plaintiff did not provide any evidence to support his claim for economic loss, suffering, mental distress and anxiety and special damages. Understandably, counsel did not make any submissions on these. Assessment will therefore proceed only of human rights, breaches, exemplary damages, interest and costs.

Breach of Constitutional Rights

18.	The Plaintiff claims four distinct instances of breaches of human rights.  These are:

1)	Unlawful physical assault with fists and gun butt.
2)	Attempt to tie him down with ropes and take him to Bolubolu, Goodenough Island.
3)	Attempt to shoot him without lawful excuse.
4)	Forceful entry and seizure of the Plaintiff’s personal properties and cash box (with money in it) from Captain’s cabin without lawful excuse.
19.	Mr. T Ilaisa urged the Court to award a global sum for breaches of the Plaintiff’s Constitutional rights, the approach taken by Cannings J in Kolokol v Ambuaruapi (2009) N3571 and Meta v Independent State of Papua New Guinea (2012) N4735.  In these cases, the plaintiffs were awarded K5000.00 for each of the distinct human rights breaches proven against the State. Mr. Kewa also urged the Court to consider that rise in inflation which has resulted in decreasing value of the Kina.  (Westcot v Motor Vehicles Insurance Ltd (2008) N3565. Counsel submitted therefore that a sum of K10,000.00 ought to be awarded for the three distinct breaches of human rights in this case.

20.	I see no reason why I should not take the same approach taken by Cannings J in Kolokol and Meta (supra) by awarding a global sum for each distinct human right or Constitutional breaches. However, what sum should I award? Should it be K5000.00 as was awarded in those cases or K10,000.00 as urged upon me by counsel considering weak Kina due to inflation?

21.	I am of the considered view that a global sum of K10,000.00 for each instance of breach would be most appropriate.  I therefore award K40,000.00 for breach of the Plaintiff’s human rights as accorded him by Section 36 (1) (Freedom from inhuman treatment), and Section 53 (Protection from unjust deprivation of property)
Exemplary Damages
22.	Mr. Ilaisa submitted that a sum of K10,000.00 would be an appropriate sum for exemplary damages and this should be borne by the Third Defendant, the State. And again, counsel relies on Kolokol where Cannings J awarded similar sum. That case involved a police shooting. In the instant the Plaintiff was seriously assaulted and injured by policemen in a publicly humiliating and degrading manner which deprived him of his dignity. (Latham v Peni [1997] PNGLR 435).

23.	Counsel relied on what the majority in Supreme Court case of Abel Tomba v The State (1997) SC518 said. The majority (Los and Salika JJ) expressed the view that where the breach by police officers is a technical one, exemplary damages may be paid by the State. However, where the breach is a significant and unwarranted departure from the proper exercise of police powers, e.g. where a police operation is unauthorized and individual officers are not named the exemplary damages are not payable by the State. A plaintiff is expected to seek such damages from the individual officers who breached the law.

24.	Counsel further relied on Section 12 (1) of the Claims by And Against the State Act 1996 (CBASA) which relevantly provides:
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.
(2)	...
(3)	...

25.	Mr. Ilaisa submitted that the current case did not involve an unauthorized operation hence the matter ought to fall under the first category of the test espoused in Abel Tomba by the Supreme Court. And in respect of the stipulation against award of exemplary damages and the exemption enjoined by Section 12 (2) of the CBASA, counsel submitted that the breach was severe and continuous and as such warrants the award of exemplary damages by the State.

26.	There is uncontroverted evidence that the Plaintiff was unlawfully assaulted and injured by the First Defendants and his cohorts Ronald Yaneku and Jerome Unafola. The First Defendant and Ronald Yaneku were policemen while Jerome Unafola was a member of the GRLLG. They hence were servants of the State, and in the absence of any evidence to the contrary were acting within the scope of their duties – the First Defendant and Ronald Kaneku. 

27.	It is also not disputed that in assaulting the Plaintiff in the manner they did, they infringed on his Constitutional rights and protections.   They breached his rights to freedom from inhuman treatment and they unjustly deprived him of his property. They subjected the Plaintiff to terrifying acts of cruelty, degradation and humiliation in the presence of his crew and passengers. Whatever the issue was with the Plaintiff, they had no right to subject the Plaintiff to the unlawful treatment they meted out on him. They absolutely showed no respect for the dignity of the Plaintiff as a human being.   

28.	The breach of the Plaintiff’s human rights was not a technical one. Rather it appears to be a significant and unwarranted departure from the proper exercise of their policing powers. This is exactly the kind of situation which the Supreme Court said in Abel Tomba should not warrant the award of exemplary damages against the State.  Should this disqualify an award against the State?

29.	It is to be noted, however, that the majority in Abel Tomba did not specifically stipulate or hold that exemplary damages should be awarded at all. And rightly because the power to award exemplary damages is discretionary. Rather it provided two considerations under which exemplary damages may or may not be awarded as seen above. To that end, the dissenting opinion by Amet CJ in Abel Tomba is worthy of note. His Honour said at pp. 7 and 8:

"...The justification that exemplary damages against the State cannot be considered because of lack of evidence as to whether the actions of the police officers was (sic) officially suctioned by State policy or directives and that individual police officers were not named in the Writ for exemplary damages to be awarded against them individually is to import into the consideration of the award of exemplary damages criteria which is not necessary.

The award of exemplary damages is therefore not dependant upon whether the action was officially sanctioned by the State policy or directives or whether individual employee officers were named in the writ in order that the award can be made against them personally. Rather, once liability for the breach or the tortuous conduct has been vicariously imputed to the employer, then ordinary and exemplary damages can be awarded against the employer. It is also specifically enabled by the Search Act.”

30.	Pertinently, the award of exemplary damages must ultimately, in my view, be considered in light of the stipulation in Section 12 (1) of CBASA that exemplary damages may not be awarded against the State unless it appears to the Court that the breach was so severe or continuous. 

31.	The breach here was severe, but not continuous. The provision does not provide that the breach be both severe and continuous. Rather the terms are used in the alternative and not conjunctively. Therefore, exemplary damages may be awarded if the court is of the opinion that the breach was severe or continuous notwithstanding the principle in Abel Tombe, in appropriate cases.  

32.	That is what his Honour Gavara-Nanu did in Kakipa v Nikilli (2002) N5689.  There the Plaintiff was unlawfully imprisoned for several months by an order of the Village Court. His Honour found that there were serious and blatant breaches of the plaintiff’s Constitutional rights which warranted the award of exemplary damages against the State. His Honour said:

“... The State has to be held responsible for the actions of its servants and agents, the State is therefore liable to the plaintiff's claim for exemplary damages... The amount awarded in exemplary damages should reflect the Court's disapproval and condemnation of the total and callous disregard of the plaintiff's rights and dignity by the defendants...
As to the view that if exemplary damages are awarded against the State it would not have any deterrent effect on the State, I beg to differ...
The law relating to exemplary damages must be appropriately applied to the circumstances of Papua New Guinea. Here, the financial considerations, particularly the capacity of the wrongdoer to pay exemplary damages is a very significant factor to be taken into account, as most State servants or officers who commit 'the torts' cannot afford to pay exemplary damages if they are personally ordered to pay such damages.”
 
33.	The courts are cognizant of the fact that there are many reasons which contribute to lack of discipline within the Constabulary resulting in abject and blatant breaches of citizen’s Constitutional rights. Principal among these is the breakdown in control and command, and lack of training and education. 

34.	For instance, in  Namba v Naru (2011) N4396 the plaintiff was a passenger in a truck which was pulled over by a police patrol.  The officers then proceeded to assault its passengers. In fear the plaintiff ran off and was shot twice in the leg.  His leg was amputated below the knee as a result. Cannings J said at [12]:

“[T]he Commissioner of Police and the State – have obviously failed in their duty to train and educate the police officer in question on proper and acceptable methods of policing. The State, in particular, must be penalised for the wilfully unconstitutional actions of its officer. An award of exemplary damages will symbolise the indignation, and disgust, of this Court and the People of Papua New Guinea about what was done. The breach of constitutional rights was sufficiently severe to warrant an award of damages.”

35.	His Honour Batari J expressed a similar view in Wiwa v State (2012) N5271. This was a dependency claim by the parents of a young man who died from loss of blood after he was shot in the leg while in police custody. In awarding exemplary damages against the State his Honour said:

“I am inclined to award exemplary damages against the oppressive, arbitrary or unconstitutional actions by the servants of the State. The behaviour of the policeman is an indication of the failing level of discipline within the police force, no doubt created by the failing in the top command of the police force and the State to properly train, fund and generally facilitate the performance of its servants. The award aims to punish the defendant so that it takes corrective measures to lift the disciplinary level of men and women of the police force and consequently, reduce and deter repeats of constitutional rights breaches.”
36.	A policeman’s job is dangerous as well as stressful. This is not lost to the Commissioner and his senior officers and managers. It is, however, doubtful if the Constabulary has programs in place to address its officers’ emotional and psychological issues. If there are no such programs, then it is of little wonder that police officers are taking out their stress and unmanaged psychological and emotional issues on members of the public whom they have sworn to protect in the course of their policing duties.
37.	It can be seen therefore that the court will award exemplary damages against the State notwithstanding the majority opinion in Abel Tombe. This I think is the proper approach to take given the discretion stipulated by s 12(1) of CBASA.  

38.	When police officers blatantly trample upon the Constitutional rights of citizens because the State cannot control its officers and instill discipline on them to respect citizens and the rule of law they are sworn to protect, through the Office of the Commissioner and his senior officers and managers, I cannot see why the State should be absolved from paying exemplary damages. Certainly, a finding of vicarious liability must necessarily follow through to an award of exemplary damages as well. Holding the State liable for payment of exemplary damages for breaches of human rights or the negligence of police officers will force it to ensure that corrective measures are put in place to address and arrest the situation some judges of this court have said. 

39.	Given the seriousness of the breach of the Plaintiff’s Constitutionally guaranteed human rights, I am compelled to exercise my discretion under s 12(1) of CBASA and award exemplary damages against the State in the sum of K10,000.00. 
Total Award
40.	I therefore award the following damages:

(1)	Breach of Constitutional/Human Rights – K40,000.00
(2)	Exemplary damages                                 – K10,000.00				                       Total		    = K50,000.00 

Interest

41.	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). Mr. Ilaisa submitted that there is nothing that takes this case out of the ordinary. Counsel also submitted that interest should be calculated from the date of accrual of the action to the date of judgment on assessment of damages. I see no reason to rule otherwise and therefore will award interest as at 2% from the date of accrual of the action, which is 3 January 2013 to the date of judgment on assessment of damages which is 20 September 2024.

42.	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
K50,000.00	 x 2% x 11.10 = K11,100.00

43.	The interest to be paid shall therefore be K11,100.00. The total award shall therefore be K61,100.00 which shall be borne by the Third Defendant.

Costs

44.	 Cost shall follow the event on a party/party basis.

JUDGMENT

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

1.	The Third Defendant (State) shall pay to the Plaintiff the sum of K50,000.00 for damages.
2.	The Fifth Defendant shall pay interest in the sum of K11,100.00.
3.	 The Fifth 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