N11302

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE] 

HR (WS) 698 OF 2019

BETWEEN
PAUL JUSTIN
Plaintiff

AND
SENIOR CONSTABLE CHARLES JOHN
First Defendant

AND
DAVID MANNING AS ACTING COMMISSIONER FOR POLICE
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUNIEA
Third Defendant

MADANG: NAROKOBI J
16 MAY 2025

LIABILITY– Whether liability against all defendants should be re-visited and confirmed.

DAMAGES – Whether plaintiff has proven its damages on the balance of probability.

Facts
The Plaintiff was physically and verbally assaulted by the First Defendant, a policeman when the First Defendant’s entry into the premises the Plaintiff was guarding as a security was refused. At the time, the First Defendant was intoxicated with alcohol, accompanied by his girlfriend and wanted to use the premises for his personal use. Liability was established by default judgment and an issue has arisen as to whether liability against all Defendants should be confirmed. 
Held:
(1)	Here the First Defendant was intoxicated with alcohol, accompanied by his girlfriend and wanted to use the Plaintiff’s employer’s office/residence for his private use. In such circumstances, what the First Defendant did, was outside the scope his employment as a policeman. The Second Defendant and Third Defendant should not be held responsible and the claim against them is dismissed. Liability should only be confirmed against the First Defendant.

(2)	Because there were no permanent injuries, considering comparable case authorities, K10,000.00 is awarded against the First Defendant for physical and verbal assault inflicted on the Plaintiff.

(3)	A global sum of K10,000.00 is awarded for breach of s 36 of the Constitution for inhuman treatment. No award is made for breach of ss 37 and 41 of the Constitution, as the claim was not specific to which aspect of ss 37 and 41 were breached as these provisions contain several sub-sections.

(4)	Exemplary damages under s 58(2) of the Constitution in the sum of K5,000.00 is awarded against the First Defendant who abused his office for personal gain and assaulted an innocent man.

(5)	Total damages of K25,000.00, is awarded against the First Defendant plus interests and costs. No award for special damages is made due to insufficiency of evidence.

Cases cited
Dingle v. Vaimambari (2021) N8705
Guard Dog Security Securities Ltd v. Mathews (2019) SC1861
Maku v Maliwolo (2012) SC1171

Counsel
Mr B Wak for the plaintiff
No appearance for the Defendants 

DECISION

1.	NAROKOBI J: The Plaintiff sued the Defendants for damages for negligence and breach of human rights by way of writ of summons.

2.	The Plaintiff is Paul Justin.  He is employed as a security guard with Ramu Nickel Management MMC Limited. He works at their head office.

3.	Liability was entered by default judgment against all Defendants on 10 December 2020.

4.	The facts, pleaded in the statement of claim are that on 18 August 2019, between 7.00 pm and 8.00pm, the First Defendant, a policeman physically and verbally assaulted the Plaintiff at his work premises, after the Plaintiff refused him entry into the company premises.  He has established liability for negligence and breach of human rights by default judgment. 

5.	The issues that I must determine are twofold: firstly, whether I should re-visit the issue of liability and secondly, if liability is confirmed what quantum of damages should the Plaintiff be entitled to?

6.	I have read all the evidence that the Plaintiff has filed.  No evidence or submission was filed by the Defendants. 

7.	On the strength of cases such as Maku v Maliwolo (2012) SC1171 it is prudent to confirm liability.  I have read the affidavits carefully, and it is clear to me, that the First Defendant was acting outside the scope of his employment.  I have considered cases such as Guard Dog Security Securities Ltd v. Mathews (2019) SC1861, which stands for the proposition, that if what an employee does is so closely related to his or her employment, then the employer will be held liable for the actions or omissions of the employee. Here the First Defendant, a policeman, intoxicated with alcohol was with his girlfriend and wanted to use the Plaintiff’s employer’s office/residence for his private use. In circumstances such as this, what the First Defendant did was outside the scope of his employment. I find that the Second and Third Defendant should not be held responsible.  Because of this, the claim against the Second and Third Defendant is dismissed, but liability against the First Defendant is confirmed.

8.	There is no doubt that the First Defendant assaulted the Plaintiff and used offensive words against him.  What damages should I award for the assault and use of offensive words? Because there was no permanent injury, following Dingle v. Vaimambari (2021) N8705, I award K10,000.00.

9.	For breach of human rights, I uphold the submission that there was breach of ss 37 and 41 of the Constitution, however, say that it was not properly articulated in the pleadings.  It is not sufficient to state a provision of the law generally and expect the court to work out how that provision was breached, and in this case, ss 37 and 41 was breached.  Both provisions have several sub-sections.  I will therefore award a global sum for breach of s 36 of the Constitution, for inhuman treatment.  I will award K10,000.00.

10.	I also award exemplary damages under s 58(2) of the Constitution in the sum of K5,000.00 because the First Defendant abused his office for a personal gain and assaulted an innocent man with use of offensive words.

11.	The total damages I award against the First Defendant is K25,000.00.

12.	No award is made for special damages due to insufficiency of evidence.

13.	I also order interest at 8% from the date of entry of liability to the date of judgment at 8% pursuant to the Judicial proceedings (Interest on Debts and Damages) Act 2015.  The 8% will be calculated on the award of K25,000.00.

14.	I also order costs against the First Defendant to be taxed if not agreed.

15.	The final orders of the court are as follows:

1)	The First claim against the Second and Third Defendant is dismissed.

2)	The First defendant pays the Plaintiff a judgement sun of K25,000.00.

3)	The First defendant pays the Plaintiff interest at 8% on the judgement sum of K25,000.00 from 10 December 2020 to the date of judgement.

4)	The First defendant pays the Plaintiff costs, to be taxed if not agreed.

5)	The matter is considered determined, and the file is closed.

6)	Time for entry of the orders is abridged. 

________________________________________________________________
Lawyers for the plaintiff: Bradley & Company Lawyers