Kuriti v The State [1994] PGNC 27; N1271 (9 September 1994)

N1271

PAPUA NEW GUINEA
[In the National Court of Justice]

WS 126 OF 1993

PETER KURITI

v

THE STATE

Mount Hagen: Woods J.
23 August 9 September 1994

Wrongly by the State - Police operations against a village - damages to property - exemplary damages - independent discretion rule.

P. Kopunye for the Plaintiff
P. Takesi for the Defendant

9 September 1994

WOODS, J.: The Plaintiff is claiming for himself and members of his village for damages for loss and damage done to property by actions of the Police during the conduct of a police operation at their village, Bagl village, in the Kagamuga area of the Western Highlands on 2 April 1990.

It is alleged that early on the morning in question a squad of police carried out a dawn raid and destroyed property including burning down houses and killing pigs and chickens and destroying items of personal and domestic property in the houses at the time.

The Plaintiff is claiming in the writ for the value of the property loss suffered, plus also damages for violation of constitutional rights, and also exemplary damages.

The State has agreed on the quantum of the claim for the value of the property loss suffered at K29,251.30. Also the State has agreed to an amount of K1,000.00 for each of the thirteen individual claimants making a total of K13,000.00. There has been no agreement to any amount for exemplary damages and evidence has been presented to the court on how the raid was carried out and the property damaged and also submissions have been made on the question of exemplary damages.

The Plaintiff and other witnesses have said how they were woken up early on the morning of 2nd April by police and ordered from their homes at gunpoint and their homes burned and they were then taken in the police vehicles to the Hagen Police Station and locked in the cells. Two days later after leaders from their church and village came and made representation to the police they were released and the police apologised and said they were the wrong suspects. It was suggested that they were involved with some trouble at the Hati Agriculture College. The witnesses said that they were shown no search warrants at the time of the police operation.

Whilst it is clear that the actions of the police had no authority in law and were therefore illegal and the State are vicariously liable for the property damage and loss suffered by the people.

However exemplary damages are a matter requiring special consideration. Generally exemplary damages have been regarded as a mark of public censure against excessive misconduct. Exemplary damages are not to unjustly enrich a party but rather are symbolic of the public’s indignation.

In cases like this where police have obviously acted too strongly unless there is a clear Government policy or directive for the police to so act how can the People as embodied in The State be punitively responsible for conduct which is really conduct in the independent discretion of the individual police officers involved. This Court has no hesitation in finding that the State will be liable for the actual property loss but how can we find that the State is also liable for the punitive aspect of the action which is really action that came from the mind of the protagonists. So whilst the independent discretion rule does not apply for the tortious damage it can still apply when considering exemplary damages.

I realise that the Court has in certain instances awarded exemplary damages against the State for actions of State officers but perhaps those awards have not considered properly the relationship of the independent discretion when it considers the punitive aspect of the awards. For some of those cases the individual policeman was named as a party so exemplary damages may have been appropriate. In I will not award exemplary damages against the State because there is no evidence that this action was officially sanctioned by State policy or directives. And as there is no individual police officers named in the writ I am unable to consider such an award against them.

I therefore Order Judgement against the State for the amounts as agreed to namely K42,251.30 plus interest at 8 percent from 14 December 1993 to date being K2,491.20. Total of the Judgement is K44,742.50.

Further interest will run at 8 percent on that part of the Judgement that is not paid after 21 days from the taking out of the Order for Judgment.

Lawyer for the Plaintiff: Kopunye Lawyers
Lawyer for the Defendants: Solicitor General