Dambe v Peri [1991] PGNC 152; [1993] PNGLR 4 (1 March 1991)

PNG Law Reports 1993

[1993] PNGLR 4 - Pike Dambe v Augustine Peri and The State 

[1993] PNGLR 4

N1156

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PIKE DAMBE

V

AUGUSTINE PERI AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Amet J

14-15 July 1988

1 March 1991

NEGLIGENCE - Duty of care - Police officer in pursuit of suspect - Discharge of firearm - Wrongs (Miscellaneous Provisions) Act Ch 297.

VICARIOUS LIABILITY - Of State for negligence of police - Not in course of duty.

DAMAGES - Contribution by employed officer for negligence - Exemplary damages as punitive and deterrent measure.

Facts

The deceased was shot with a shotgun by the first defendant, a policeman, during the course of a police operation, and died as a consequence of the wounds. His widow claimed damages from the State for herself and three children of the marriage. The trial judge found that the policeman was negligent in discharging his firearm at the deceased, who he suspected of stealing beer, as the circumstances did not justify the use of firearms.

Held

N1>1.       Firearms should only be used in extreme situations of danger to life of the police or other persons, and only after all reasonable and other possible alternatives have been exhausted. In relation to pursuit of suspects or escapees from custody, similar conditions of last resort must be present. Every effort at pursuit must be made; failing that, every effort at warning and caution must be given by mouth, and if no heed is paid to that, again, warning shots should be fired above the head into the air. That failing, and only then, it might be lawfully justifiable to shoot at the body of a fleeing suspect or escapee. The purpose then must be only to maim in a non-vital area to prevent further escape.

N1>2.       The State is vicariously liable for the negligence of the first defendant, its employee. This is permitted under the Wrongs (Miscellaneous Provisions) Act 1(a), which provides that:

N2>"(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."

N1>3.       Exemplary damages also has a compensatory element. It is intended to punish the defendant and also to serve as moral retribution and deterrence. It serves to exact retribution for oppressive, arbitrary or unlawful action by servants of the Government. It also manifests the intention to deter the defendant and others who might act similarly from repeating the behaviour.

Counsel

DL O'Connor for the plaintiff.

L K Kari for the defendants.

1 March 1991

AMET J: This is a dependency action for damages brought under Part IV of the Wrongs (Miscellaneous Provisions) Act Ch 297. The plaintiff is the widow of Mek Dambe of Taimil Village in the Minj District of the Western Highlands Province. Mek Dambe was shot with a shotgun by Augustine Peri, a policeman, in the service of the State, during the course of a police operation near Taimil village on 21 December 1982, and died as a result of the shotgun wounds in Mount Hagen Hospital on 22 December 1982. The plaintiff claims damages for herself and three children of her marriage with the deceased.

The plaintiff claims that the policeman, Augustine Peri, unjustifiably and negligently aimed towards and discharged the firearm at the deceased, causing him injuries from which he later died. It is alleged that the second defendant the State, as the employer, is vicariously liable in damages for the negligence of the first defendant, its employee. It was admitted by the State that the first defendant is its employee, and was at all material times on duty as a policeman in its service.

UNCONTESTED FACTS

The uncontested facts are these. The first defendant was attached to Police Mobile Squad No 5 in Mount Hagen. At about 7.00 am on 21 December 1982, the police were returning to Mount Hagen from an operation at Baisu. They were advised by radio of a highway robbery at the junction of Minj and the main highway. All units involved in the operation were directed to the junction. The first defendant was in a vehicle with three other policemen. The scene of the alleged robbery was near the village of the deceased. The robbery involved theft of beer. The police units were directed to search the village and the surroundings for likely suspects, being any villager who was drinking or who appeared to have consumed beer or was drunk.

The first defendant and two other policemen, Mimba and Api, with their arms and ammunition left the village and followed a track away from the village for about 100 yards. The defendants only called the first defendant in their defence. His account of what he and the other policemen did continues uncontested. He said that they heard a noise, and he instructed the other two to wait on the track while he went to ascertain what the cause of the noise was. He saw three people: a boy, a young man, later found to be deaf and dumb, and the deceased. When these three saw him, they fled down the slope towards where the other policemen were but then changed direction and ran away from them. The police found six cartons of beer hidden in a small bush hut. They waited in the area in case the person who left the beer might return for it.

They then heard some noise up the track. Constable Mimba went to find out what it was and returned with two women. A third woman joined them shortly from off the track. The three women were questioned by the police if they knew anything about the highway robbery and what they were doing in the area. The first defendant said they remained in the area for one hour.

DISPUTED FACTS

The evidence as to the circumstances under which the deceased received the gunshot wounds, as can be imagined, are at variance between the plaintiff's witnesses and the first defendant. The defendants indicated they would call two other witnesses, being the two policemen present, but only called the first defendant in the end. It would be convenient to deal with his evidence first. I quote from his evidence in chief:

"Just as we were leaving, I saw the deceased running up the slope towards us with a bottle of beer in his hand. I told Mimba to hide on the track and grab him. Mimba grabbed him and I saw them struggling. He (the man) pushed Mimba backwards and he ran back down the slope. I raised my shotgun, aimed at his legs and fired, but the deceased was gone down the slope. I did not know that the shotgun pellets had hit him; I told the females to carry the beer and as we were leaving we heard a groaning sound coming from where the deceased had run down. I told Api to go down the slope and find out the sound while we waited. He came back with the news that the deceased had been wounded."

In further examination in his evidence in chief, the first defendant gave the following answers to questions asked of him:

N2>Q.       When you first went to the village, were there any suspects in mind or was the whole village under suspicion?

N2>A.       Yes, we were to look for villagers who were drunk.

N2>Q.       When shooting occurred, who was actually with you, aside from Constables Mimba and Api?

N2>A.       The three females I mentioned earlier.

N2>Q.       What part of slope did you shoot at deceased from?

N2>A.       I was on the top of the slope, slightly on the side.

N2>Q.       How far was the deceased running when you fired the shot?

N2>A.       About 10 yards.

N2>Q.       Mark the distance of 10 yards.

N2>A.       (Marks witness-stand to rear door - Mount Hagen Court No 1).

The first of the plaintiff's two women witnesses was Non Pou. Her preliminary evidence is substantially corroborated by the evidence of the first defendant. She and another woman, Kumap, were on their way to the garden when they were confronted by the police, who were armed with guns and pistols. She was quite naturally scared. She saw policemen drinking. She saw ten bottles of beer being consumed by the policemen. She saw the deceased walking up towards the police. He was very close when two police shot him. She marked the distance as approximately six metres. She and the other woman were behind the police when police shot at the deceased. She saw the deceased fall. In answer to some questions from the court, she said she saw the deceased running up the slope towards the village in the direction where she, the other two women, and the police were standing.

The second witness for the plaintiff was one of the other women, Kumap Wasman. Her preliminary evidence is similar to Non Pou's and also corroborated by the first defendant, and I do not repeat it. She saw them drink ten bottles of beer. After drinking the beer, the policemen told the women to carry two cartons of beer to the village. At that moment, she and all the others saw the deceased run up. She said:

"And at that moment the policeman took aim and when we were still watching, the policeman fired. And that moment they fired red flame into air .... After that the police went down, had a look at the deceased and then they left. So from what I saw, the firing was done to deceased's head. So we later walked up with the two cartons of beer and the policemen came up later to our house. He came later with police vehicle, took two cartons of beer and left. Later some other police drove down to where the deceased was, picked him up and left the scene."

Only to this witness was the defence proposition of accident or justification put in cross examination. It was put in the following terms:

N2>Q.       If I put to you that the deceased had struggled with the police and was in the act of running away when he was shot, what would you say to that?

N2>A.       No. When he was running up, he was shot.

That is the oral evidence going to liability. To complete the whole evidence on liability is the affidavit report of Dr Beavis, the then medical superintendent of Mount Hagen Hospital. This was tendered by consent. I set this out in full:

"On 21/12/82 about noon I did admit to the Mount Hagen Hospital a young unconscious man later identified to me as being Mek Dambeh (also written down as Mekpe Dambonge).

The young man smell of beer and his blood alcohol level was found to be 0.12 percent W/V.

Surgery was performed 3 hours later for a collapsed lung and punctured intestines and gall bladder.

Towards the end of the operation and subsequently in the ward Mek developed signs of increasing cerebral pressure and died at 8.00 am on 22/12/82.

At post-mortem on the same day there were no skull fractures but a small metal pellet was found in the temple and the brain appeared swollen, agreeing with the diagnosis of cerebral oedema.

Small round metal pellets were found in the lungs and heart as well. The tissues outside the ribs were also bruised and contained air bubbles.

I concluded that Mek died from cerebral oedema which caused Mek to get insufficient oxygen. This prolonged state of lack of oxygen caused the brain to swell which in turn led to coma and finally death.

The lung damage was caused by the numerous metal objects presumably shotgun pellets".

The defendants also tendered the coroner's certificate dated 15 March 1983 from the Minj Coroner, which stated that:

"no good purpose will be served by holding an inquest upon the body of the said Mek Dambeh and that the body of the said Mek Dambeh may be buried.

My reasons for coming to this decision are:

N2>(1)      The round was fired by Constable Augustine Peri acting in the course of his duty.

N2>(2)      Death was caused by accident."

When the evidence of the medical report that the gunshot wounds were found on the chest, abdomen and both upper arms of the deceased was put to the first defendant to explain in the light of his evidence that he aimed at the legs as the deceased ran away down the slope, the first defendant was not able to satisfactorily explain that.

FINDINGS OF FACTS

I am satisfied that the two women witnesses for the plaintiff, Non Pou and Kumap Wasman, were two of the three women who were present with the policemen when the deceased was shot. The first defendant was frank about three women being present at the time of shooting. I am satisfied also that the police had in their possession some cartons of beer at the time, supported amply by the evidence of the first defendant as well as the plaintiff's two witnesses.

The medical report supports the conclusion that the deceased had consumed some beer. The first defendant said the deceased was with two other young men drinking when the police came upon them. The deceased ran away from the scene.

The two women witnesses said when they came upon the police, the policemen were drinking, that they drank between them about ten bottles. The first defendant denied this allegation. I am inclined to believe the evidence of the two women. Beer was available. The police remained in area for about one hour. They told the women to carry two cartons to their house at the village. Police later picked up the beer. I do not believe it is inconceivable, given the fact that the men had earlier been on a night operation at Baisu and then re-deployed, that they did consume the beer they came upon as the two women deposed. I am satisfied on the balance of probabilities that the first defendant did consume some beer.

I am satisfied on both the first defendant's and the two women witnesses' evidence that the deceased did run up the slope towards where they were. I repeat what the first defendant said as to how the shooting of the deceased came about.

"I told Mimba to hide on the track and grab him. Mimba grabbed him and I saw them struggling. He pushed Mimba backwards and he ran back down the slope. I raised my shotgun, aimed at his legs and fired, but the deceased was gone down the slope".

I accept the distance the deceased was when shot at as being "about 10 yards" from the first defendant's evidence. I am not prepared, however, to accept the first defendant's defence that, Constable Mimba hid on the track, grabbed the deceased and struggled with him and that the deceased pushed Mimba and was running away down the slope when he shot at his legs. There are a number of very telling reasons why this version is just not worthy of credit or belief.

The first and the most significant hurdle that the first defendant had to overcome was the uncontroverted medical evidence that the "puncture wounds were noted on the chest, abdomen and both upper arms". There was also "a small metal pellet found in the temple" and "small round metal pellets found in the lungs and heart as well". These are all unequivocally consistent with a blast received from the front. Significantly, there was no evidence of any puncture wounds or pellets in the legs, to the rear or sides, to the bottom, hips or back areas of the deceased, such as might be consistent with a blast received from the back, as the first defendant deposed.

The additional circumstance which makes the first defendant's evidence quite unworthy of belief is the question of why it was considered necessary to hide and grab the deceased instead of simply using the authority of their position as police in apprehending him, backed up by the weapons they had in their possession. In fact, I believe this version is of recent invention. I note that this proposition was not put to the first witness for the plaintiff, Non Pou. It was only put to the second woman witness, Kumap Wasman. Furthermore, the other two policemen were not called to support the first defendant's evidence. One of the other telling factors against the first defendant's account is that, by his own evidence, the deceased was only about 10 yards away. No apparent effort was made to first give chase to apprehend the possible suspect, and no warning shot was fired over the deceased's head.

I am satisfied on the balance of probabilities that the deceased was shot from front on, as he ran up the slope towards the policemen and the women. I dismiss the first defendant's evidence as being untruthful in all the circumstances. I find that the first defendant took aim and shot at the deceased as he ran up the slope towards where the first defendant and others were, at a very close range of about 10 yards.

NEGLIGENCE

The next issue, then, is was the first defendant's use and discharge of the shotgun in the circumstances as I have found them with lawful justification, or was it unjustified and negligent? What duty of care did the first defendant owe to the deceased, if any? What are the standards and conditions that have to be met or complied with by persons in possession and charge of firearms generally? What are the standards and conditions which need to be satisfied or complied with before firearms are discharged by police personnel in the course of duty?

The defendants had stated in opening that the deceased was a suspect; that he was asked to stop; warning shots were fired but he kept running, so he was shot to be maimed to stop further escape. He was accidentally shot in vital parts. It was sought to rely on the certificate of the coroner in support of the defence that the shooting was an accident.

The evidence did not support the defence case. I have found the deceased was running towards the first defendant when he was shot at a distance of about 10 yards from front on. I find that no warning by mouth was given. The first defendant himself said no warning shot was fired. In these circumstances, there cannot be any justification, morally or legally, for discharging a firearm at any person, be he a suspect or not.

I am satisfied on the balance of probabilities, that being the standard of proof necessary, that the first defendant was negligent in discharging the firearm at the deceased in these circumstances.

I dismiss the value of the certificate of the coroner. I cannot understand how, and on what basis, such a certificate could have been issued if the medical report was properly examined.

In fact, I am satisfied on this evidence that the first defendant has a prima facie case to answer on a criminal charge of unlawful killing and should be criminally charged.

USE OF FIREARM BY POLICE

The police do not have the licence to carelessly, negligently and unjustifiably shoot any person, whether he be a suspect or not, in the manner the first defendant shot this deceased. The issue of firearms to the police must be under strict conditions of use. Firearms should only be used in extreme situations of danger to life of the police or other persons, and only after all reasonable and other possible alternatives have been exhausted. In relation to pursuit of suspects or escapees from custody, similar conditions of last resort must be present. Every effort at pursuit must be made; that failing, every effort at warning and caution must be given by mouth, and if no heed is paid to that, again, warning shots should be fired above the head into the air. That failing, and only then, it might be lawfully justifiable to shoot at the body of a fleeing suspect or escapee. The purpose then must be only to maim in a non-vital area to prevent further escape.

There is much danger in indiscriminate shooting without adhering to these kinds of guidelines for the safety of the innocent. Indeed, presently the reports and allegations of police shooting of suspects in similar circumstances must give some cause for concern about indiscipline use of firearms.

There cannot be any justification whatsoever, by any stretch of the imagination, for shooting which produces the kind of resultant injuries found on the body of this deceased. It can only have been from a direct, intentional discharge front-on at short range.

VICARIOUS LIABILITY OF THE STATE

The second defendant, the State, is joined on the basis that it is vicariously liable for the negligence of the first defendant, its employee. This is permitted under the Wrongs (Miscellaneous Provisions) Act s 1(a), which provides that:

N2>(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.

I note that s 2 of the act enables the State to seek indemnity and contribution against its servants or agents for any liability to which it might be subject. I note that the State had not sought to cross-claim in this action. I do not know of any such cross-claim in the recent past. In the particular circumstances of this case, as I have found them, an arguable case exists against the servant whose actions may be considered to be beyond being in the course of his duty or employment because it is so negligent, unjustifiable, unreasonable and prima facie criminal in nature. However, it does not call for my consideration as it had not been cross-claimed in defence. The issue does not arise.

I am satisfied on the State's concession that it is vicariously liable in damages for the negligent actions of its servant, the first defendant.

ASSESSMENT OF DAMAGES

I now turn to the assessment of damages. At the time of his death Mek Dambe was 24 years of age. The plaintiff wife, Pike, was also 24 years of age. Both were apparently in good health. They had three children of the marriage, who were aged 7, 5 and 1 years old at the time of their father's death. They lived a good normal village life at the deceased's village.

The deceased was a subsistence farmer; he planted kaukau and vegetable gardens plus a reasonable-sized coffee garden. The plaintiff deposed to their earning about K800 per year from the sale of some food and vegetables and coffee. She said she and the deceased shared the money evenly, K400 each, and that they both gave money for the children.

I accept that the deceased husband would have provided the manly physical labour to cut bush for making gardens, burning and cleaning, that he would also have provided the physical labour for cleaning and maintaining the coffee garden. He provided fatherly physical and emotional protection and support to the family. The plaintiff has deposed that she now found it difficult to garden and maintain and harvest the coffee to the same level as when her deceased husband was alive. She said she earns only about K100 a year from the coffee. The coffee garden is bushy. Although by custom the deceased's relatives should help, they are reluctant. They have their own families and gardens to attend to.

The plaintiff is not remarried, though there have been proposals from the husband's relatives. She says she wants to live by herself with her children and remarriage is not on her mind at the present time. She still lives with her deceased husband's people though she visits her own village and family from time to time.

The plaintiff has claimed general damages, exemplary damages and interest thereon, plus the cost of the proceedings.

It is said that the basis of a claim of this nature is the loss of economic or material advantages rather than the plaintiff's need for economic support. But I believe that the latter merges with the first. The loss of economic or material advantage necessarily include some portion of the plaintiff's need for economic support. In reality, whatever name or description be given to the loss or need, it is the loss of the deceased's paternal domestic support to the family in money terms, as well as in intangible terms, equated as approximately as one is able to in monetary terms.

The Court has to consider, in monetary terms, the degree of the dependence of the wife and children, had he lived, i.e that which they have lost, not the manner of life the wife chooses or is, perhaps, forced to adopt on being deprived of his support.

Contingencies properly to be taken into account include prospects of remarriage, premature death by the wife, and, if prospects of remarriage be good, then prospects of further children. An additional factor which may reduce the amount is the deceased's customary obligations had he lived.

Exemplary damages also has a compensatory element. It is intended to punish the defendant and also to serve as moral retribution and deterrence. It serves to exact retribution for oppressive, arbitrary or unlawful action by servants of the Government. It also manifests the intention to deter the defendant and others who might act similarly from repeating the behaviour.

I should say that, in my experience on the bench, criticisms, denouncements, and strong remarks against unlawful conduct on the part of 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.

I intend, therefore, to demonstrate these principles in the award of exemplary damages, so that the message is conveyed loudly that those charged with administering the law are not a law unto themselves and cannot continue to abuse their position with impunity. Officers of law enforcement agencies are expected to set examples for the public to follow.

I have accepted substantially the submissions on behalf of the plaintiff and the dependents on computing the amounts of compensation, because the defendants' contest was against liability. These calculations are made on the following basis:

N2>1.       a loss of income of K300 per annum or K5.70 per week for the plaintiff wife - Pike Dambe;

N2>2.       an allowance to Pike Dambe and the three children of K14.00 per week for the loss of the contribution of their deceased husband and father in undertaking all the heavy manual activities for the benefit of the family including:

a.       breaking of new ground for gardening;

b.       digging of new and old drains from time to time as necessary;

c.       building of fences to keep pigs out of vegetable and coffee gardens;

d.       buildings and maintaining houses for the family and livestock;

e.       collecting and breaking firewood; and

f.        overseeing the interests of the family in fulfilling community and family obligations (brideprice and compensation payments and the like).

The sum of K14.00 is apportioned K5.00 to Pike, the plaintiff, and K3.00 to each of the three children.

N2>3.       an allowance to each child of K2.00 per week for loss of cash income from the parents for miscellaneous expenses;

N2>4.       payment of the usual sum of K1,500 to the wife as customary personal representative for the estate of the deceased for the loss of expectation of life. No claim was made by any of the other surviving blood kin of the deceased;

N2>5.       payment of interest on past damages at 8% per annum from the date of the issue of the writ of summons to the date of judgment; and

N2>6.       an adjustment of future damages to take into account the fact that they are paid in advance, utilising the 3% tables.

N1>1.       Pike Dambe

Loss of income and income earning capacity from 22.12.82 to date of judgment at K10.70 per week		K 4,540.22 <
Interest	>	K 1,874.1an>
Future loss of income and earning capacity for 25 years at K10.70 adjusted at 3% (K10.70 x 922.181)	K 9,867	<
Less 10% contingencies	K 987	K 8,880
Estate Claim		K 1,500

N1>N1>2.       The dependent children

Loss of dependency at K5.00 per week  from 22.12.82 to date to judgment K2,121.60 x 3	K 6,364.80
Interest from date of issue of the writ of summons to date of judgment at 8% per annum = K 875.80 x 3	K 2,627.40
Future loss of dependence	<
1. Dambe
Date of judgment to 22.12.93 (age 18) at K5.0 K5.00 per week less 5% contingencies	K 494.00
2. Unduk
Date of judgment to 22.12.95 (age 18)	K 988.00
3. Mok
Date of judgment to 22.12.99 (age 18)	K 2,181.01
Sub-Total	K29,449.59
Exemplary Damages	K30,000.00
Total	K59,449.59

I award damages in favour of the plaintiff in the amount of K59,449.59. I order that the awards for the dependent children be invested by the Registrar in trust until each child reaches maturity, which I determine to be 18 years, as being the more appropriate age than 16 years in the present circumstances of Papua New Guinea. The dependent children's award shall be as follows:

1.	Dambe: K2121.60 + K494.00 + K875.80	K3,491.40
2.	Unduk: K2121.60 + K988.00 + K875.80	K3,985.40
3.	Mok: K2121.60 + K2181.01 + K875.80	K5,178.41

The relevant dates of maturity of each child shall be as follows:

Dambe:	22.12.93
Unduk:	22.12.95
Mok:	22.12.99

Costs awarded to the plaintiff.

Lawyer for plaintiff: D L O'Connor

Lawyer for defendants: State Solicitor