Kambo v Haro [1999] PGDC 22; DC171 (15 January 1999)

DC171

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 242 OF 95

KOKO KAMBO

V

HENRY HARO
First Defendant

SAMSON MANDO
Second Defendant

THE STATE OF PNG
Third Defendant

MT HAGEN PUPAKA
11/11/98 & 15/01/99

COUNSEL
Ms J Kelaga for the complainant
No appearance by the defendants

15/01/99

M.M. PUPAKA: This matter comes before me for assessment of damages following the default judgement ordered on the 11/11/98 when the defendants failed to defend.

The claim is for damages for injuries received at the hands of the first and second defendants who were, and presumably still are, serving members of the Royal PNG Constabulary. The complainant alleges that the first and second defendants assaulted him and inflicted severe bruises and lacerations on his body. He alleges that the beatings were carried out for no apparent reasons – the complainant was not even charged nor formally arrested or charged.

There is, for the purposes of these proceedings, which proceedings are for assessment of damages, one affidavit. It was sworn and filed by the complainant, Mr. Koki Kambo. (Affidavit of K. Kombo sworn 08/12/97 and filed 10/12/97). A written submission, dated the 11/01/99, has also been filed for the complainant by the complainant’s Lawyer, J. Kelaga.

The facts, according to the complainant by way of his affidavit, are these:

At about 2.00pm on 30/08/93, the complainant was waiting to catch a PMV at Whagi Por Welding Center, along the Okuk Highway near Mt. Hagen. The first and the second defendants pulled up next to the complainant and ordered the complainant to get into the police vehicle they drove up in.

Both at the time of the complainant boarding the police vehicle, and whilst on transit, the complainant, according to himself by way of his affidavit, was repeatedly beaten by the first and second defendants using metal rods and their gun butts. They took the complainant to the police station. The complainant says he was then released without being charged. The complainant says he, upon his release, walked to the Mt. Hagen Hospital where he received treatment for injuries received. The fact of receiving treatment and the extent of injuries receive are evidenced by a Medical report, (prepared by one Dr. N. Bada), attached to and included as annexure in the complainant’s affidavit.

The Medical Report reveals: Bad bruising and laceration to the back of the head, tender and swelling of right knee with mild hemarthrosis and abrasions, swollen and tender left jaw, and generalized facial swelling. The Report further reveals that the complainant was treated for shock and given antitanus toxoid, antibiotics and painkillers. He was also given ant-inflammatory drugs (indocid) for relief of acute inflammation to the body. On the 24/09/93, upon review, it was noted that the bruising and lacerations were healing well but slowly. The back of the head and the left jaw were still sore when pressed, and the left forearm laceration was still present.

These are all the facts given for the purposes of assessment of damages.

However, I have no trouble in being satisfied that the complainant was indeed beaten up by the first and second defendants in the manner described, and indeed sustained the injuries described, which injuries were later, (in the afternoon of the day of the assault – 30/8/93), treated as described.

On the evidence available I would generally have no hesitation in assessing and awarding an appropriate level of compensation for the injuries suffered, against the first and second defendants personally. However, I have much difficulty in finding the third defendant, Independent State of PNG, vicariously liable for the actions and conduct of the first and second (policemen) defendants. To that end there is not one iota of allegation, evidence, or proof that the two individuals were acting in the normal course of their duties as policemen. It is not said the two policemen were after the complainant as a suspect. It is not said or alleged as to whether the complainant was questioned in relation to any offence committed. The possibility that the two men could have been acting in the course of their duties is at best, only a matter of guesswork. The fact that the two policemen were using a police vehicle to pick up the complainant, and the fact that at the relevant times the two were members of the Police Force would not necessarily be proof of the two acting in the cause of their duty.

What is meant by the proposition, acting in the course of duties, particularly by members of the Police Force, has been defined in the case precedents.

Injia J, in the case of ERIARE LANYAT & ORS –V- GEORGE WAGULO & THE STATE (Unrep.) N1481, had cause to discuss this proposition. In the head note of the judgement in that case His Honour, among other pertinent propositions, states: -

1. Pursuant to S.1 (4) of the Wrongs Act Ch. No.295, the State is only liable for torts committed by Policemen in the course of performing their functions "as if the functions had been solely conferred or imposed by the government".
   

In the body of his judgments Injia J. expounds on the above by citing one of his own earlier judgements. The case of NOGO SUSUKE & ORS –V- THE STATE (WS. No. 951/94, decided on 21ST June 1996). The latter case discussed what could amount to committing a tort by any policeman, whilst in the course of performing lawful functions. The aspect that stands out, in these two judgments by Injia J, is that the tort must have been committed whilst the policeman was performing or attempting to perform lawful functions. In the case of NOGO SUSUKE & ORS (Supra) for instance Justice Injia found that an act of setting fire to (a area of) dry grass which put property at risk and did ultimately led to the destruction of property, though the act of setting fire would otherwise be a criminal act, was done in the course of carrying out lawful functions. I quote from an excerpt quoted in the ERIARE LANYAT & ORS (supra) case.

"Could it be said that the policemen involved in this case committed a tort in the course of doing something which he (sic) was not empowered to do? It is clear that the operation was authorized. In the process of carrying out the operation, this policeman thought the best way to locate and apprehend the robbers was to set fire to the grass. How illogical or irrational he was in his judgment is not for this court to question, suffice it is that, that was a judgment he formed in the course of performing his duties."

In these two cases decided by Injia J, the State defended itself and argued to be exonerated from liability. The facts of these cases also revealed how the torts complained of were committed. It was further known just why the policemen were where they were, doing what they were doing.

In this case before me now the complainant, Koki Kambo, does not disclose why the policemen did what they did to him. Was he caught because the two policemen suspected him of having done something unlawful? Was he beaten because the two policemen thought he was not cooperating with them in an investigation lawfully conducted for instance? Was he perhaps mistaken for a prison escapee? The point I make is that there is no allegation or argument as in the course of what lawful duty the assault on the complainant was occasioned. It is of course breaching rationality to presume a policeman in uniform and driving or using a police vehicle, is always in the course of his lawful duties, regardless of what manner of torts he is committing.

To this end it is up to both the complainant and the State to prove under what sort of circumstance the tortuous act was committed. The State has failed to defend in this instance. Does that mean that this Court is bound, as a matter of course, to presume "in the course of performing lawful function", the very aspect not proved or even alleged by the complainant? I think not. Liability must lie where it falls. There is not one reason why the State should be vicariously liable for persons (employees or agents) on its payroll other than under Section 1 (4) of the Wrongs Act, Ch. No. 295. Failure of the state to defend is no acknowledgment of liability. The complainant is always duty bound to prove what loss he has suffered and against whom.

The mistaken, but to an extend popular, view that the State is invariably liable for any and all torts committed by it’s servants or agents, for no other reason than the fact that those who have committed such tort are servants or agents of the State, was put to rest by the Deputy Chief Justice in the case of HELE TUPI –V- THE STATE (Unrep.) N1654.

"Even if the people who committed the act of burning the house were members of the Defense force [as was the case in the case] and that they are agents or servants of the state, the plaintiff must show that the members of the Force were acting within the scope of their functions". (per Kapi DCJ).

The facts of this instant case can also be fairly distinguished from another case of Police brutality, the case of JASHIHE WANIHOLO -V- HENRY TOKAM & THE STATE (Unrep.) N15663. In that case Salika J, held the State liable, but then rightly so. The facts revealed that the plaintiff there was a suspect in a break and enter complaint. The plaintiff was assaulted in the course of what amounted to an arrest of the plaintiff for the break and enter complaint.

In the end, I must hold that the state is not vicariously liable for this first and second defendants’ assault on the complainant, Koki Kambo. For all we know the complainant could have been assaulted for and over a purely private matter, for instance over a personal debt, over a girl friend issue, or perhaps over tribal difference. It could equally also have been the case that the complainant was assaulted whilst the two policemen attempted to execute lawful duties as policemen. However the complainant has failed to show that first and second defendant acting in the course and scope of their lawful duties as policemen. I must then find the first and second defendants wholly and personally, both severally and jointly, liable for the injuries suffered by the complainant.

DAMAGES

The complainant sought general and special damages in the sum of K5, 000.00. He also sought exemplary damages, plus interests and costs.

It is submitted for the complainant, on the basis of an analysis of a host of precedents that an award of K8, 000.00 is just and reasonable. I can only presume the plea for K8, 000.00 is for general damages. No special damages have been sought specifically, that is, none have been proved. I cannot know what special damages, including expenses for medical treatment etc, are appropriate when those same have not been proved.

The complainant sought a sum of K5, 000.00 in his statement of claim. He has not amended his initial claim for K5, 000.00. He is bound by what he has pleaded. He cannot now seize the opportunity, so to speak, to ask for an award over K5, 000.00. However, I do tend to agree with Ms. Kelaga that the complainant’s injuries warrant an award in the range of K8, 000.00, but as I said the complainant is bound by his initial claim of a specific sum for damages. Any assessment must be within the limits of the specific sum claimed. I would, all things considered, award K5, 000.00 in generally damages.

In this sort of case, where serving members of the Police Force resort to unexplained brutality, exemplary damages have been awarded. However, exemplary damages have generally been award against the policemen personally whilst the general damages award have been ordered against the State. In this case the liability rests on the policemen defendants alone. I see no reason why the punishment award of exemplary damages should also be assessed against the defendants on top of the general damages award. I decline to award exemplary damages in the exercise of my discretion.

I order judgement for the complainant in the sum of K5, 000.00, by way of general damages, against the first and second defendants personally, jointly and severally. Interest shall be paid on the award at 8% from the date of summons. Costs shall follow the event, same to be taxed if not agreed.

Paulus Kunai: Complainant
In Person: Defendant