Apa and Siune, on their own behalf and as representative of about 31 other members of the Okondie Clan, Kundiawa, Chimbu Province, Kupo Kaugla and Willie Wamna, on their own behalf and as representative of about 9 other members of the Simbaik [1994] PGLawRp 684; [1995] PNGLR 43 (4 August 1994)

PNG Law Reports 1995

[1995] PNGLR 43 - Toglai Apa and Bomai Siune, on their own behalf and as representative of about 31 other members of the Okondie Clan, Kundiawa, Chimbu Province, Kupo Kaugla and Willie Wamna, on their own behalf and as representative of about 9 other members of the Simbaik

[1995] PNGLR 43

N1267

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TOGLAI APA AND BOMAI SIUNE, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 31 OTHER MEMBERS OF THE OKONDIE CLAN, KUNDIAWA, CHIMBU PROVINCE,

FIRST PLAINTIFFS;

AND

KUPO KAUGLA AND WILLIE WAMNA, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 9 OTHER MEMBERS OF THE SIMBAIKU CLAN, KUNDIAWA, CHIMBU PROVINCE,

SECOND PLAINTIFFS;

AND

NIGAUL KOMBA AND KUGBANE KUGLAME, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 5 OTHER MEMBERS OF THE WAUKU IRUKU CLAN, KUNDIAWA, CHIMBU PROVINCE,

THIRD PLAINTIFFS;

AND

DAN KAWAGLE AND KERENGA WAU, ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF ABOUT 59 OTHER MEMBERS OF THE KOMUN CLAN, KUNDIAWA, CHIMBU PROVINCE,

FOURTH PLAINTIFFS;

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA,

DEFENDANT

Kundiawa

Sheehan J

27 June 1994

4 August 1994

CONSTITUTIONAL LAW - Constitutional litigation - Unwarranted destruction of property during police raid - Breaches of fundamental constitutional rights - Compensation - Section 58 Constitution.

DAMAGES - Assessment - Destruction during police raid - Vicarious liability - Exemplary damages - When appropriate.

Facts

Following a riot, the police came to the villages of the warring parties and set fire to their houses. The State conceded liability, and the matter came to Court for assessment of damages.

Held

N1>1.       Each plaintiff whose property was destroyed has a claim for general and special damages.

N1>2.       The wilful destruction of a villager’s home without justification or lawful excuse is clearly a breach of fundamental constitutional rights warranting the compensation that s 58 of the Constitution envisages.

N1>3.       Exemplary damages are criminal, vindictive, or punitive in nature, and such an award is discretionary.

N1>4.       It is not a general principle of vicarious liability that an employer (not himself at fault) may be fined for the wrongful or criminal acts of his servant, no more than it is a general principle of criminal law.

N1>5.       Vicarious liability for exemplary damages is reserved for those cases where the employer or superior can be said to be linked by some act of omission or commission as a participant in the wrongful action.

N1>6.       While the State must accept responsibility for compensation for the wrongful acts of its servants, it does not seem reasonable that it should be punished and fined for them as well. This is particularly so where, as here, the process of criminal law against the actual offenders is more appropriate. The opportunity to seek damages against the officers themselves was open to the plaintiffs. They have not chosen to do

N1>7.       It would be more appropriate in cases such as this to join the responsible offenders as parties to the proceedings so that, in the event that such claims succeed, then damages, including exemplary damages, if considered appropriate, can be awarded against those responsible. That would have the deterrent effect that is a major object of an award of exemplary damages.

N1>8.       There should be an award for general and even aggravated damages in this case. Loss, and shock of loss, of home and shelter must be compensated. But even damages awarded for such breaches of fundamental rights must come within the rationale of damages; that is, a compensation for an actual loss, actual inconvenience, or actual injury.

Cases Cited

Papua New Guinea cases cited

Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87.

Dambe v Peri [1993] PNGLR 4.

PNG v Kofowei [1987] PNGLR 5.

Other cases cited

Bradford City Council v Arora [1991] 2 WLR 1377; [1991] 2 QB 507; [1991] 3 All ER 545.

Broome v Cassell & Co [1972] UKHL 3; [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801.

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129; [1964] 2 WLR 269; [1964] 1 All ER 367; [1964] 1 Lloyd’s Rep 28.

Counsel

K Kua, for the plaintiffs.

J Maeokali, for the defendant.

4 August 1994

SHEEHAN J: This matter comes before the Court at Kundiawa for assessment of damages. The writ filed in 1991 was not defended by the State. The delay in bringing this assessment before the Court has been occasioned by the enormity of the task of gathering the evidence of damage to the plaintiffs when their homes, indeed their villages, were destroyed by fire in a police raid in August 1990.

The first plaintiff, a Village Court Magistrate resident in Yuwai village on the outskirts of Kundiawa, deposed that following a riot in Kundiawa town at the beginning of August 1990, a large armed police party came to his village of Yuwai and, without warning or explanation, proceeded to set fire to all the houses there till none were left standing. He said that when he attempted to stop them, he was threatened by them. Unable to do other than watch, he proceeded to follow the police officers as they demolished his village. He says in paragraphs 7 and 8 of his affidavit of 21 May 1994 that:

N2>“7.      They then spread out into all the neighbouring villages and I soon saw smoke rising from all the villages in the neighbourhood including Yuwai, Koglomauglo, Kurumba, Mambuno, Kundar, Poglkemambuno and the Wara Agriculture Station, Nikgogl, and Memboglki which lies on the other side of the Chimbu River.

My inspection of these villages after the police had left indicated that all the houses therein totalling about 130 were destroyed. Not a single house was left standing. The burning houses also burnt off all the domesticated plants and crops that were cultivated around the houses.

N2>8.       As a result of the police raid, my family and I were left without our homes. All our properties including our working tools, cooking utensils, blankets and clothing, and traditional dressing gear including birds of paradise plumes, loin cloth, shells, etc., were all destroyed. Like other people, I was also forced into erecting a temporary house with a piece of plastic for a wall and roof in which my family lived on a temporary basis. The plastic sheets were obtained at cost from the shops in town. Life was miserable, we had no cooking utensils to prepare our food nor did we have any axes or bush knives to use to cut timber for firewood. All of these contributed to causing us great hardship and suffering.”

Another of the plaintiffs, Peter Kagl of Kunda village, deposed:

N2>“1.      I am one of the plaintiffs herein and am from the Komun Tribe whose land and homes also lie to the north easterly fringes of the Kundiawa Town.

N2>2.       I am 31 years old and am married with four children. I am presently employed as a Shop Supervisor with Kui Valley Trading Pty Limited in town. I have been so employed for the last 7 years but I live in my village at Kundar by the Chimbu River.

N2>3.       On or about the 8 August 1990, I was at my place for work in town when I heard talk about the police going out to my area to destroy our homes. As soon as I heard that, I left my work place and ran all the way down to the riverside. The policemen had already gone through the villages before me so I simply followed them. The policemen who were following later attempted to send me back but I insisted and kept on following them.

N2>4.       As I was going through the Yuwai Village the houses there were already burning. There were other policemen still milling around in that village. I ran past them and down to my village at Kundar.

N2>5.       By the time I arrived at my house it was already burning. The policemen had already gone past my village. Some of the policemen pointed their guns at me as I came running in. There was nothing I could do so I stood back and watched with the rest of my family who were there as our house went up in flames.

N2>6.       This caused me so much grief that I went across to a mud puddle, scooped up some mud and rubbed it all over my body as we do when in mourning ....”

Those affidavits are typical of the evidence of the destruction caused during the raid and establish that the plaintiff villagers lost literally everything: shelter, clothing, bedding, and household and gardening utensils.

SPECIAL DAMAGES

The Court’s task of assessing damage has been greatly simplified by the exemplary work of the staff of the Office of the Valuer General of the Department of Lands and Physical Planning under the direction of Mr Gabriel Karap, Valuer In Charge of the Highlands Region. His department is well experienced in evaluating villagers’ properties for compensation purposes, having been involved in extensive claims in regard to State acquisition of land, buildings, and property for roads, schools, aid posts, power lines, government station, mines and the like.

He said that he and his men had examined the site of every claimant, found the end posts of each house and, thus, were able to determine and measure the foundations. From this they were able to establish the number of ordinary bush material houses that required compensation. They were also able to determine in a similar way the measurements of houses built in modern style, ie, with sawn timber and permanent cladding materials.

The Valuer’s assessment of the loss of buildings has not been disputed. No challenge made by the defence gives any reasons to doubt the assessment. Bush material houses were valued on the dimensions of each house, determined from the foundation size. Materials’ costs were assessed on the availability and cost of building material in the district. Commonly, ordinary village bush material houses were averaging some K400 to K500 each. I accept those figures in each case.

The evidence offered by the plaintiffs of losses for clothing, bedding, furniture, and household utensils was comparatively uniform. The global figure for these was typically in or around K300. The claims in each case were supplied by the plaintiffs themselves and accepted by the Valuer. The strength of this evidence is seen, not just by setting an average value, but by recognising that over the 90 or so households involved, the losses and the values placed on them by the plaintiffs, all villagers, established a uniform, acceptable value of the basic contents of a village home. Basic gardening tool claims averaged around K50, while loss of livestock, gardens, or tree crops were equally in keeping with commonly accepted values.

It was accepted by counsel that it was not necessary to call each and every individual plaintiff to establish each claim for clothing, bedding, and personal or household items, crops or livestock. It was recognised that that evidence was contained in the detailed report to the Valuer now before the Court. Having conceded that in Court, it is, therefore, somewhat disconcerting to find counsel for the defence’s submission that this evidence should be discounted to some extent. In fact, I take that submission to be no more than a note that the Court should be cautious in accepting those figures without itself considering them. That I have done.

In the result, I have no hesitation in accepting the valuation as establishing the extent of the special loss sustained by the plaintiffs.

GENERAL DAMAGES: EXEMPLARY DAMAGES

The plaintiffs also seek general damages for breach of fundamental constitutional rights and the loss of use of their property. The defence, on the other hand, contends that general damages are not appropriate, because the constitutional provision for compensation is only applicable for personal rights of citizens, not their property rights. That is simply not the case. The wilful destruction of citizens’ homes, and even whole villages, without justification or lawful excuse is clearly a breach of fundamental constitutional rights. It is worse than that, it is criminal, but in any case certainly warranting the compensation that s 58 of the Constitution envisages.

The plaintiffs claim general damages for each plaintiff in the sum of K4,500, based on an award made in Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87. They also seek exemplary damages, also based on that decision, where an award of 42 percent over and above the award of the general damages was determined.

In written submissions, counsel for the plaintiff stated:

“Exemplary damages can be awarded as an additional but discretionary relief both in common law and under section 58 of the Constitution. Exemplary damages are normally granted to punish and also to deter the tortfeasor from similar conduct in the future. The court can almost take judicial notice of the fact that police raids in Papua New Guinea and, in particular, in the Highlands, has become an accepted and established practice. Evidence of this is found in the cases of Pogla v The State and Ginga v The State referred to above. Evidence is also found in this particular case and in the other case of [Okuk v The State in proceedings commenced by Writ of Summons No 711 of 1990]. Such conduct has gone unchecked for far too long and it is time that it is put to an end decisively.

The leading common law case on exemplary damages is Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, a decision of the House of Lords which was discussed in a subsequent decision of the House in Broome v Cassell & Co [1972] UKHL 3; [1972] AC 1027. In Rookes it was observed that the primary object of an award of damages is to compensate the plaintiff for the harm done to him. A possible secondary objective is to punish the defendant which is an object which can be achieved by awarding exemplary damages. The House of Lords’ decisions counselled moderation in the award of exemplary damages and observed that the award of exemplary damages may be influenced by the size of the award of compensatory damages.”

The English cases cited by the plaintiff’s counsel firmly established the nature and rationale of exemplary damages. They determined that exemplary damages are criminal, vindictive, or punitive in nature. That is, they are not part of a compensatory award, but rather a fine to impress on a party that such behaviour as has caused damage will not be tolerated, and that a substantial additional award by way of fine is imposed to make that clear.

Halsbury’s Laws of England (4th edn) vol 12 para 1190 speaks of exemplary damages as being intended to punish the defendant and vindicate the strength of the law. But Salmond and Heuston on Torts (18th edn) ch 32 says that court decisions show that caution must be exercised in making such awards, since exemplary damages bring a criminal element into the civil law without the safeguards of criminal procedure. That is, a criminal penalty is imposed following on a “conviction” without the trial and the defences of the criminal system. Because of this, such penalties can lead to excessive awards, and unmerited windfalls for the plaintiff. The learned authors point out that it must be remembered that an obligation to pay a large award by way of compensatory damages has itself a punitive element in it, just as does the rule that costs follow the event, when costs go to a successful claimant. A recent decision, Bradford City Council v Arora [1991] 2 WLR 1377, also made this point.

The decisions in the Rookes and Broome cases also determined the particular common law circumstances in which exemplary damages may be awarded. That is, for oppressive, arbitrary, or unconstitutional actions; when aggravated general damages are insufficient; and when a statute provides for such an award. Section 58 of the Constitution plainly provides for such an award, and the actions of the police officers were obviously oppressive and unconstitutional.

A wronged plaintiff, as here, is clearly entitled to substantial damages by way of compensation. But a plaintiff is not entitled, as of right, to exemplary damages. The discretion of awarding exemplary damages, which are non-compensatory but penal, lies with the Court. That is the situation in common law and under the Constitution. It is, therefore, a matter for determination whether the defendants in this case should be penalised by such an award as well as meeting an award of damages in compensation.

There is nothing new in law in holding an employer or superior liable for the faults of his employee carried out in course of employ, even when that employer or superior may be entirely without fault himself. That is the nature of vicarious liability. An employer can be held liable in damages for his servant’s wrongdoing. Under statute, the liability of the State in tort is set out in s 1 of the Wrongs (Miscellaneous Provisions) Act Ch 297.

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...

(4)      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”.

In PNG v Kofowei [1987] PNGLR 5, the Supreme Court relied on s 1(4) to establish liability of the State for the wrongful actions of the police officers in that case.

But damages in all cases of vicarious liability are referring to the compensatory damages due to an injured plaintiff, not penal or punitive damages. It is certainly not a general principle of vicarious liability that an employer (not himself at fault) may be fined for the wrongful or criminal acts of his servant, no more than it is a general principle of criminal law.

In Vicarious Liability in the Law of Torts (Atiyah, Butterworths 1967) at p 435, the learned author, P S Atiyah, notes:

“There appears to be no English authority in which there has been any decisions on the question whether exemplary damages can be awarded against an employer who is vicariously liable for the tort of a servant committed in circumstances in which exemplary damages can be awarded against the servant”.

He summarises recent decisions as denying vicarious liability for exemplary damages on principle, except for cases where:

N2>1.       the principal authorised the damage and manner of the wrongful act, or

N2>2.       the agent was unfit and the principal reckless in employing him, or

N2>3.       the agent was employed in a managerial capacity and was acting within the scope of that capacity, or

N2>4.       as the principal or manager, he ratified or approved the actions causing damage.

In brief, vicarious liability for exemplary damages is reserved for those cases where the employer or superior can be said to be linked by some act of omission or commission as a participant in the wrongful action. I believe the courts in Papua New Guinea should, and do, endorse exemplary damages in such situations.

The learned trial judge in Amaiu’s case did award exemplary damages, though the issue of the State’s vicarious liability for such damages was not there argued. It is to be noted, though, that he considered granting damages against the actual wrongdoers in that case. At p 109, he says:

“I have considered granting damages personally against those who have breached the Constitution, principally the OIC Kunjip and Warder Giblen. I have power to do so under s 58 but consider that I cannot because on natural justice grounds those two men were not named as defendants in this case and therefore have not been given an opportunity to be legally represented and to be heard as defendants ...”

Those reasons for not penalising the actual culprits throw into sharp relief the reality of imposing a fine - exemplary damages - on a principal not shown to be at fault.

Dambe v Peri [1993] PNGLR 4 was a case of a police officer in course of his duties unlawfully causing the death of the plaintiff. Here, again, the vicarious liability for exemplary damages was not argued, but the learned trial judge, Amet J, in making an award of exemplary damages referred to their penal nature and went on to point out in strong terms the need to sheet ... the appropriate penalties to those responsible. He said at p 12:

“I should say that, in my experience on the bench, criticisms, denouncements, and strong remarks against unlawful conduct on the part of the police officers against suspects, accuseds and convicted offenders have not had any real effect in deterring similar conduct. Appropriate authorities need to enforce greater disciplinary measures against such conduct.

I believe that such indiscipline and breaches of the very law that police personnel are charged with administering contribute to the general decline in the public’s respect for the law. I also believe that the continual indiscipline and unlawful conduct by members of the discipline forces, in particular the police, is contributed to by the lack of stern punitive disciplinary sanctions against offenders.

I, therefore, recommend strongly that, in a case such as this, the offender should be personally held accountable in damages, or at least be penalised by requiring him to contribute in a punitive way. Such an offender should be further dealt with under the appropriate discipline code, based upon the findings of fact before a superior court of law.”

In that case, the first defendant was the officer whose unlawful actions led to the claim and, by this judgment, held directly liable for the damages awarded. In Kofowei’s case, it is not clear if there was an award of exemplary damages. But the four police officers who had made assaults on the plaintiff were joined as defendants, and were likewise liable to meet the judgment awarded against them.

In this case, the plaintiffs have sued the State for the wrongful actions of the police force, or rather the wrongful actions of certain members of the police force. None of the police officers responsible has been joined as a party to these proceedings, only the head of the Police Force and the State. Effectively, in this case, there is one defendant only to meet the penalty of damages. While a department of State has its own legal entity, nonetheless, the financial burden of that department falls on the State alone. It is certainly true that the State must be responsible for the unlawful acts of its disciplined forces. Nonetheless, it cannot be said that the actions of these police officers was in pursuance of a policy of the department or the State. There has been no evidence before this Court that this is so. Nor has there been any evidence of any State direction or approbation of these raids. While sadly aware that this case is not the first, the Court cannot “almost” take judicial notice of a number of police raids as amounting to an established policy or practice, as was suggested by counsel for the plaintiff. Evidence was needed to prove this, and there was none.

Without such evidence, it does not appear to me that there should be imposition of exemplary damages on the State, which, in any case, has as its prime obligation under the Constitution a duty to ensure the safety of its citizens. While the State must accept responsibility for compensation for the wrongful acts of its servants, it does not seem reasonable that it should be punished, fined for them as well. Particularly where, as here, the process of criminal law against the actual offenders is more appropriate. The opportunity to seek damages against the officers themselves was open to the plaintiffs. They have not chosen to do so.

It would be more appropriate in cases such as this to join the responsible offender as party to the proceedings so that, in the event that such claims succeed, then damages, including exemplary damages, if considered appropriate, can be awarded against those responsible. That, I believe, would certainly have the deterrent effect that is actually a major object of an award of exemplary damages.

In determining the proper damages in this case, I am not satisfied that an award simply based on the Amaiu’s case is appropriate. While the award in that and other cases cited should be considered, damages in all cases should be dealt with on a basis appropriate to their own facts and circumstances.

I am, however, satisfied that there should be an award for general and even aggravated damages in this case. Loss, and shock of loss, of home and shelter must be compensated. But damages, even awarded for such breaches of fundamental rights, must nonetheless come within the rationale of damages, that is, a compensation for an actual loss, actual inconvenience, or actual injury. In tort, damages by way of compensation are at large, that is to say, open ended, since all possible heads of damage may not be directly measurable is actual material loss. But keeping the principle of compensation to the fore, the court can, as well as awarding a general sum by way of damages for the measurable losses, also make an award taking into account:

“the defendant’s motives, conduct and manner of committing the tort, and, where these have aggravated the plaintiff’s damage by injuring his proper feelings of dignity and pride, aggravated damages may be awarded ... Aggravated damages are designed to compensate ... they must be distinguished from exemplary damages which are punitive ....” Halsbury’s Laws of England (4th edn) vol 12 para 1189.

It is not easy to quantify in money terms the loss of home and shelter either, and the suffering, shock, and insult to the dignity of an ordinary citizen. But taking all these matters into account, I consider in this case a global figure of K224,000 for all damages is a substantial sum, adequate and fair in the circumstances. It equates to K2,000 per plaintiff.

The plaintiffs are awarded interest on the judgment pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Ch 52 at the rate of 8% from the date of the course of action in August 1990 until this date of judgment. The same rate shall apply from the date of judgment until final payment.

Lawyer for the plaintiffs: Carter Newell Lawyers.

Lawyer for the defendant: Solicitor-General.