Kuba v State [2002] PGDC 15; DC216 (7 June 2002)

DC216

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 20 OF 2000

Between

Kitap Kuba
Complainant

V

The Independent State of Papua New Guinea
Defendant

Mt. Hagen: Appa, P.M.
2002: 7th May, 7th June

JUDGMENT

This is a Police assault case. The complainant is a village councilor of Upper Wara Tumun in the Anglimp District, WHP. He alleged that on the 16th May 1995, he was at Kindeng road junction when a group of Mobil Policemen from Kerowagi – Simbu Province confronted him without any justification and assaulted him by using pistol, punching, kicking with police issued boots and empty bottles of coke on his head, face, ribs and all over his body and he was unconscious and was brought to Mt. Hagen Hospital for medical treatment by his relatives.

The complainant was examined by Dr. John Mckup (Private Practitioner) of Family Medical Centre and revealed the following:-

- Spine gross Limitation of spine movement
- Confined to T/L to L3/4 spine
- No deformity by way of a scoliosis or keyphosis seen.
- Face – Scar of 5 cm across forehead

The doctor concluded that the spinal muscle function loss is the direct result of injuries from the kicks from Police boots and police gun butts. He rated 40% loss of spinal function, 5% loss of CNS function and 2% costemetic losses to facial area.

The summons was served on the Solicitor General’s Office on the 25th August, 2000 and proof of service was returned and filed but there had been no appearances by state defence lawyers so case proceeded ex parte on 7th May, 2002.

In support of the complaint, complainant through Tamutai Lawyers filed and tendered his own sworn affidavit and four other witnesses, including two Doctors who examined and treated the injuries.

I have considered the affidavits and written submission filed by the complainant’s lawyer both on liability and on assessment of damages and I am satisfied on the balance of probabilities that liability was established. I am satisfied that the assailants were identified as Mobile Policemen from Kerowagi who use servants/agents of the state and were in the execution of duties as they were seen in Police uniforms and driven in Police cars. There was no defence to show any justification or lawfulness for the assault.

On the issue of quantum, complainant asked for K10,000.00 in global awards for the assault. To justify the claim, plaintiff’s counsel referred to some precedent cases comparable to minor back injuries, (Pakau vs. MVIT [1993] PNGLR 73, BONNIE vs. MVIT [1994] PNGLR 393, DAMI WALPE vs. MVIT [1993] PNGLR 434, SIPA TOA ARE vs. MVIT [1991] PNGLR 456 and for headache, dizziness, traumatize (JACQUELINE KENNEDY VS. JERRY NALAU and PNG [1980] PNGLR 543, PUPUNE vs. PUPUNE [1993] (unreported sc 452).

I have noted that the awards made in those cases ranged between K10,000.00 – K12,000.00 which were reasonable and I would follow here.

I enter judgement for the complainant for a global sum of K10,000.00 in general damages plus 8% interest to run from date of summons to date of settlement and cost of the proceeding.

Tamutai Lawyers: Complainant
In Person: Defendant