Papaney v Eiba [1999] PGDC 16; DC62 (13 August 1999)

Unreported District Court Decisions

[1999] PNGDC 15 - AMBUNG PAPANEY V BELDEN EIBA

[1999] PNGDC 15

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NOS 41-43 OF 1998

AMBUNG PAPANEY (Complainant)

v

BELDEN EIBA (1^st Defendant) AND POLICE DEPARTMENT (2^nd Defendant) AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA (3^rd Defendant)

Kimbe

S Lenalia PM

7 July 1999

20 July 1999

2 August 1999

13 August 1999

CIVIL CLAIM—Claim for damages—An action for tort of battery—Assault committed by a policeman—State agent or servant—Damages and exemplary damages—Award

DAMAGES—General—Exemplary damages—Whether or not State should pay for wrongful and deliberate actions of "protagonists"—Action of individual person—State not a scape-goat—Damages awarded against First Defendant. Application by Kunzi Waso [1996] PNGLR 218 followed

Cases referred to:

David Wari Kofowei v Augsutine Siviri and Ors [1983] PNGLR 449

Application by Kunzi Waso [1996] PNGLR 218

R v Waterfield; and R v Lynn [1963] 3 All ER 659

Davis v Lisle [1936] 2 All ER 213

Livingstone v Rawyards Coal Co [1880] UKHL 3; [1880] 5 App Cas 25

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, [1964] 1 All ER 367

Toglai Apa and Others v The State [1995] PNGLR 43

Tom Amaiu v The Commissioner of Corrective Institution and The State [1983] PNGLR 87

Legislation:

Constitution s57, s58

Police Force Act 1998 s140

Arrest Act

Motor Traffic Regulations

Criminal Code s32(1)

Wrongs (Miscellaneous Provisions) Act (Ch297) s1

Representation:

Counsel/Representative:

Complainant: H. Waninara

Defendants: S Kesno for 1^st and 2^nd Defendants

Lawyers/Representative:

Complainant: Legal Officer NBPOL—MOSA

Defendants: Lawyer for 1^st & 2^nd defendants: Principal Legal Officer, Royal Papua New Guinea Constabulary– Police Headquarters

S LENALIA PM:

N1>[1]      The complainant sues the three defendants for an alleged assault of battery committed upon him by the First Defendant on 23 October 1997, first at Dagi Service Station then on the same date at the entrance to the Police Station. The action is brought against the three defendants on the basis of vicarious liability alleging that the first defendant being a servant or an agent of the 2nd and 3rd defendants acted in execution of his duties as a police constable. The first defendant holds the rank of a Senior Constable and is attached to the Police Dog Unit at Kimbe Police Station. Service of the process was effect on all three defendants. Despite entry of intention to defend, by the Solicitor General's office, no lawyer from that office represented the third defendant. Mr Kesno appeared for and on behalf of the first and second defendants. The 1^st defendant denied liability and I directed that the matter should be tried by presentation of affidavit evidence to which the parties accepted and complied.

N1>[2]      The complainant is the Bulk Terminal Manager of a company the New Britain Palm Oil Limited (hereinafter referred to as NBPOL). The complainant's evidence is that on 23 October 1997 at about five (5 pm), he drove to the Kumbango Plantation to drop off his workers. On his return journey to the town of Kimbe, he observed two vehicles ahead of him drove through a "detour" sign indicating major road-work being undertaken between Dagi double bridge and Henderson bridge also commonly referred to as Dagi Bridge. It is Ambung's evidence that since it was already 5 pm, all machines engaged on the road-work had stopped working and the road closer was no longer manned on the end towards Kumbango Plantation.

N1>[3]      Mr Papaney further deposes that at the second bridge after Kumbango Plantation, he was stopped by the first defendant and a few other policemen according to defence evidence about three or four of them in a police vehicle, a Nissan Utility. It was the complainant's observation then that the first defendant and his colleagues were or appeared to be drunk or somehow affected by alcohol approached Ambung and inquired with him why had he driven through the detour sign. Although the complainant does not mention any exchange of words between him and the first defendant, the defence evidence show there was exchange of heated argument following which the Complainant alleges that the first defendant assaulted him causing his mouth and nose to bleed then gave instructions to Mr Papaney to drive back to the detour sign and take or go through the Dagi back road into Kimbe Town. The complainant turned back and complied with what the 1st defendant had instructed.

N1>[4]      The complainant's evidence further show that he wanted to lay a complaint against the first defendant so he drove up to the Kimbe Police Station duty counter. Minutes after his arrival at the Police Station, the first defendant and his men also arrived and according to the Complainant it was then that he was effectively prevented from laying a complaint. I am entitled to infer from the evidence of both for the complainant and for the defendants that at that stage an argument must have erupted between the complainant and the first defendant which resulted in the first defendant assaulting the complainant twice on the forehead. According to Ambung those two punches caused him to fall onto the cement floor in the duty office. It is Ambung's evidence that on both occasions of assaults he sustained blood and grievous injuries to his nose and his forehead. On the assault at the police station, blood stains were left on the cement floor and this version is confirmed by at least two witnesses, Maria Nate and Mr Waninara. The complainant claims that, his nose was injured or broken and his set of false teeth and the hearing aid equipment were also broken into pieces. For all his injuries he required medication. After being assaulted at the police station, the complainant was physically prevented from laying his complaint went back to the house, took his family and some colleagues of his and proceeded to Mosa Clinic Centre to be treated. Whilst at Mosa, he met the Legal Officer who accompanied him to their Clinic base for medication. The doctor's findings will be discussed latter.

N1>[5]      The evidence of the complainant is substantiated by that of three other witnesses two of whom I regard as independent witnesses. John Dama then employed as a civil worker with Niugini Civil and Petroleum deposed that he recalls the incident at Dagi Bridge on 23 October 1997. John was actually engaged to monitor vehicle movements at the "detour sign" at the Dagi Double Bridge. According to Mr Dama it was already 4.30 pm when this witness and his colleagues were packing up to go home and the detour sign had been removed. John Dama says that the complainant drove up to him and inquired if the road was already cleared so he could drive through. John Dama informed the complainant that, the road was now clear and he could drive through. The complainant drove through since two other vehicles had been allowed to go through.

N1>[6]      John Dama says that when the complainant returned a few minutes latter, he observed that the complainant's face and clothes were covered with blood and further noticed that the nose was bleeding and the complainant showed his broken teeth to this witness informing him that policemen had assaulted him.

N1>[7]      Another witness, Maria Nate of Section 21 Bush Camp was around at the police station around about the time the complainant was brutally assaulted by the first defendant. Maria says at page 2 of her affidavit that she saw the first defendant punched the complainant causing him to fall on the cement floor then was observed to be unconscious for a while. It is Maria's evidence that when the complainant stood up, the first defendant further grabbed the complainant by his collar perhaps with intention to inflict further punches, but another policeman came in between the complainant and first defendant and prevented the first defendant from assaulting Ambung by dragging the complainant out from the duty counter. Maria Nate also observed that the complainant suffered grievous wounds. She also says she observed that policeman Belden Eiba's eyes were blood-shot suggestive of the first defendant being drunk.

N1>[8]      Mr Waninara, the lawyer representing the complainant says in his affidavit that he learnt about the incident of assault the subject of these proceedings on the night of 23 October 1997 about 7 or 8 pm he saw the complainant and noticed the complainant had blood all over his face and clothes. Mr Waninara arranged for the Company doctor to immediately attend to the complainant. The next day, the same accompanied the complainant to the Kimbe Police Station to see the Provincial Police Commander. The outcome of that audience with the PPC is not known however Mr Waninara confirms evidence by the complainant and witness Maria Nate that by that morning the complainant's blood from the previous evening could be still seen on the cement which I must assume to have been dried by then. Mr Waninara also followed up with a letter to the PPC complaining about the kind of treatment being received by the complainant from the first defendant.

N1>[9]      On Mr Waninara's evidence, the defence lawyer made no objections on the status of such evidence on the basis of conflict of interest. For purposes of the complainant's case and for the record purposes, I would accept Mr Waninara's evidence as part of the complainant's evidence not to determine if there was an assault but as corroborative evidence in support of the total evidence put by the complainant.

N1>[10]    I now come to the defence case theirs is complete and general denial. The first defendant's evidence suggests instead that the complainant was fully drunk and was observed to have blood-shot eyes, talkative, unsteady and at one stage used foul language towards the first defendant at Dagi Bridge, the complainant is supposed to have asked the first defendant "who are you" despite the fact that these three or four policemen were in full uniform and were in front of a police vehicle.

N1>[11]    Senior Constable Belden Eiba's evidence reveals that after having spoken to the complainant, the complainant insulted him by saying "fuck you" then drove back towards Kumbango. Eiba's evidence further show that he drove after the complainant to the police station at Kimbe and found the complainant trying to lay a complaint showing his (complainant's) glasses and a set of false teeth and his hearing aid were already broken bearing them in his hands. The first defendant says at the police station, he did not see any blood on the complainant's face or his clothes. Then Belden gives a description of the complainant's behaviour at the police station saying he was shouting at the top of his voice accusing the first defendant of having broken his glasses, hearing aid equipment and the false teeth.

N1>[12]    The first defendant's evidence is supported by that of five other witnesses which I do not wish to discuss in detail due to the fact that all their evidence is much similar to that of the defendant. All the defence witnesses say that the complainant was very drunk and talkative, and their description of events both at Dagi Bridge and at the Police Station is simply similar to those given by the first defendant. All the defence witnesses deny the first defendant assaulting the complainant at all. Despite their general denial, the Medical report prepared by Dr Win Lwin show the following injuries sustained by the complainant:—

N2>(1)      One (1) cm laceration over the forehead, one stitch was applied.

N2>(2)      Soft tissue swelling and bruise above the right eye.

N2>(3)      Swelling over the ridge of the nose.

N2>(4)      Laceration of one (1) cm in length over right corner of the upper lip, one stitch was applied.

N2>(5)      Soft tissue swelling with haematoma (concealed blood clot) in sized 3 x 3 cm over the right corner of the chin.

N2>(6)      Broken false teeth (denture) into pieces in the middle.

N2>(7)      Xrays of the nose revealed fracture of the nose bone without displacement.

N1>[13]    The doctor concluded that the complainant was treated with injection "tetanus toxoid", pain relief tablets and "antibiotics".

N1>[14]    Before I go to the law, there is a particular aspect of the evidence that I wish to discuss. There is in the evidence of the parties finger pointing in regard to the conditions of sobriety of both the complainant and the first defendant. The complainant in his evidence described the first defendant as "visibly unstable" appeared to be abusive because he (first defendant) was under the influence of liquor. Two witnesses filed affidavits to rebut the evidence put by the defence that the complainant was drunk at the material time. Messrs Moabi Tala and Buni Yawetau both employed at Kimbe Bulk Terminal say that it would have been impossible for the complainant to have been drunk as described by the defence evidence. Both witnesses say that they were dropped off at the Kumbango Mill Compound about 5 pm and about 5.30 pm the complainant took his return journey to Kimbe. They also say that in any event it is the company policy that no worker must consume liquor whilst on duty or during official working hours.

N1>[15]    It is trite law that when one person causes harm of any sort to another or his property, the normal remedy the law will give is recovery of damages. Thus s57 and s58 of the Constitution authorizes the Courts of this country to enforce the guaranteed rights which are enshrined in the Constitution. A person whose rights have been infringed has right to claim for compensation pursuant to s58. To begin with, the defence put up by the three defendants is very general. Being a general defence none of the two lawyers referred to the general powers and responsibilities of a police constable in execution of his or her duties.

N1>[16]    In this jurisdiction the powers and responsibilities given to a police constable are contained in legislation such as the Police Force Act 1998, the Arrest Act, the Search and Bail Acts, the Motor Traffic Regulations to mention a few. Thus s140 of the Police Force Act says:—

N2>"140.   Powers, Duties, Rights and Liabilities of members of the Force.

A member of the Force has the same powers, duties, rights and liabilities as a Constable under the underlying law, except so far as they are modified by or under an Act."

N1>[17]    Under the Criminal Code, there are some general defences available to a policemen on execution of his duty such as s32(1) of the Code which provides that a person is not criminally responsible for an act done in the execution of the law. That section says:—

N2>"(1)     A person is not criminally responsible for an act or omission done or made—

(a)      in execution of the law; or

(b)      in obedience to the order of a competent authority that he is bound by law to obey, unless the order is manifestly unlawful; or

(c)      when that act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; or

(d)      when he does nor omits to do the act—

(e)      in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats; and

(f)      believing himself to be unable otherwise to escape the carrying of the threats into execution but this protection does not extend to an act or omission that would constitute an offence, punishable with death or the offence of wilful murder or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm is an element; nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him".

(Amended by No. 12 of 1982, s2.)

N2>(2)      Whether an order is or is not manifestly unlawful is a question of law."

N1>[18]    The above proviso envisages a number of general defences available to persons who execute their lawful duties according to the law and secondly to those who have to execute their duties in response to orders by their superiors or by competent authorities.

N1>[19]    The plaintiff in this claim alleges that his right has been violated and says he is entitled to compensation. The claim by the complainant is nothing new in law in sueing the employer or his superiors liable for the faults of his employee carried out in the name of the law and even where the employer may be entirely without any faults on his part. This branch of law is in the nature of vicarious liability. Thus an employee may be held liable in damages for his servants wrongs.

N1>[20]    In the instant claim the State's liability is set out in s1 of the Wrongs (Miscellaneous Provisions) Act (Ch297) which section is in the following terms:

N2>"1.      General Liability of the State in tort

(1)      Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a)      in respect of torts committed by its servants and agents; and

(b)      in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c)      in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property . . .

(3)      Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the state in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government."

N1>[21]    Locally, the case of David Wari Kofowei v Augustine Siviri and Ors [1983] PNGLR 449 clearly sets out the role of Policemen as agents and servants of the State and the State's liability in respect of Policemen wrongful action carried out in the name of the law.

N1>[22]    To decide whether the defendant acted within the limits of the scope of responsibility given him statutorily, t is necessary to look at the nature of work he was engaged in and more particularly, his action and behaviour towards the Plaintiff at the material time and ask whether or not the Defendant acted in accordance with law. Ashworth J said in R v Waterfield [1963] 3 All ER 659 at 661-662:

"In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. To cite only one example in Davis v Lisle [1936] 2 All ER 213, it was held that even if a police officer had a right to enter a garage to make inquires, he became a trespasser after the appellant had told him to leave the premises, and that he was not, therefore, acting thenceforward in the execution of his duty, with the result that the appellant could not be convicted of assaulting or obstructing him in the execution of his duty."

N1>[23]    I am reminded that the action before me is a civil claim and the standard of proof required in law in civil litigation is that of the balance of probabilities. Due to the nature of this case being an assault of battery the standard of proof might be higher than the ordinary civil standard. In a case like this where the first defendant denies liability completely it becomes a question of credibility and the court must use its discretionary powers to either accept or reject evidence and determine which party to believe and which it must not believe.

N1>[24]    On examination of all evidence before me on the instant claim, I am satisfied on the balance of probabilities that the first defendant assaulted the complainant. I find there is no motive whatsoever for the complainant to have put up a case like this against the three defendants.

N1>[25]    Further I find the evidence of the complainant and his two independent witnesses John Dama and Maria Nate to be very convincing indeed.The first assault at Dagi Bridge near Dagi Service Station was an act between the complainant and the first defendant and his collegues but a few minutes later the complainant returned to where witness John Dama was, John there and then observed that just a while ago Mr Papaney had passed through had stopped and spoke to him had been seen to be normal but on return only a few minutes latter was seen to have blood all over his face and clothes.

N1>[26]    Maria Nate is another such witness who is straight forward and very brief. She was the one who witnessed the two punches administered to the complainant's forehead causing him to fall down to the floor. I find that the acts of assault by the first defendant were unlawful, unconstitutional and unwarranted in the circumstances of the case. I must find for the complainant.

N1>[27]    In my assessment of damages in this claim, the law requires this court to calculate the damages and consider what would be pecuniary consideration which will make good of the sufferer as the result of the first defendant's unconstitutional action. It had been said that if injuries are to be compensated by damages the court should nearly as possible get to the sum of money which will put the person who has been injured in the same position he has been in before he sustained the injuries: Livingstone v Rawyards Coal Co [1880] UKHL 3; [1880] 5 App Cas 25.

N1>[28]    In his particulars of claim, the complainant claims two items in damages. First he claims special damages and secondly for general body damage. I have been urged by the lawyer for the complainant that I should also consider exemplary damages. Such damages can be awarded as an additional but discretionary relief both in common law and in this jurisdiction by virtue of s58 of the PNG Constitution. Exemplary damages may be grated to punish a person and to defer a tortfeasor from similar conduct in the future. The object of exemplary damages is to compensate the plaintiff for the harm done to him. In a well-known statement in the English case of Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 at 1227 (see also [1964] UKHL 1; [1964] 1 All ER 367 at 411), Lord Delvin said this about exemplary damages:

"I wish now to express three considerations which I think should always be borne in mind when awards of exemplary damages are being considered. First, the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour. The anomaly inherent in exemplary damages would become an absurdity if a plaintiff totally unaffected by some oppressive conduct which the jury wished to punish obtained a windfall in consequence.

Secondly, the power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty as in the Wikes case (164), can also be used against liberty. Some of the awards that juries have made in the past seem to me to amount to a greater punishment than would be likely to be incurred if the conduct were criminal; and moreover, a punishment imposed without the safeguard which the criminal law gives to an offender. I should not allow the respect which is traditionally paid to an assessment of damages by a jury to prevent me from seeing that the weapon is used with retraint. It may even be that the House may find it necessary to follow the precedent it set for itself in Benham v Gamblong (165), and place some arbitrary limit on awards of damages that are made by way of punishment. Exhortations to be moderate may not be enough.

Thirdly, the means of the parties, irrelevant the assessment of compensation, are material in the assessment of exemplary damages. Everything which aggravates or mitigates the defendant's conduct is relevant".

N1>[29]    His Lordship went on to say that a case for exemplary damages should be presented quite differently from one for compensatory damages. But the fact that the two damages differ essentially does not necessarily mean that there should be two awards. In fact in this jurisdiction there is a divergence of judicial opinion amongst National Court judges, where some have awarded exemplary damages in cases where the State is a party and some have simply refused to make any awards. Arguments advanced in favour of awarding exemplary damages against the State is that whilst such damages may be awarded against individual policemen or other governmental employees, it cannot be awarded against the State unless of course there is evidence produced by a plaintiff to show that the State as an institution officially sanctioned, directed or approbated such wrongful deeds.

N1>[30]    Unrully behaviour by policemen has become common place and why should the State be held liable for deliberate actions of protagonists which argument is quite valid and convincing since exemplary damages will in no way have any punitive or deterrent effect on the State: Toglai Apa and Others v The State [1995] PNGLR 43. Reasoning in those cases where exemplary damages have been awarded are based on principles enunciated in such cases as that of Tom Amaiu v The Commissioner of Corrective Institution and The State [1983] PNGLR 87 and David Wari Kofowei v Augsutine Siviri and Ors [1983] PNGLR 449 on which the Supreme Court relied on s1(4) of the Wrongs (Miscellaneous Provisions) Act to establish liability of the State for the wrongful actions of police officers. I must also make an award for exemplary damages.

N1>[31]    I am further convinced by the evidence of the complainant that neither the second nor the third defendants authorized the acts of assault committed upon the complainant by the first defendant. As was said in Application by Kunzi Waso [1996] PNGLR 218, there needs to be a reduction on financial burdens on the taxpayers through the State and thus I feel it is an appropriate case where I must hold the first defendant solely liable for this unlawful, unwarranted and unconstitutional action against the complaint.

N1>[32]    The following is the break-up of damages awarded to the complainant.

N2>(a)      General Damages -- K2,500.00

N2>(b)      Special damages -- K1,400.00

N2>(c)      Exemplary Damages -- K500.00

N1>[33]    Total judgment due to the complaint is the sum of K4,400.00 plus the interest of eight (8) percent to be calculated from the date of filing of the summons.

N1>[34]    Orders Accordingly.