Kopil v Wakon, Commissioner for Police [2001] PGNC 140; N2065 (12 March 2001)

N2065

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. No. 511 of 2000

BETWEEN:

MUMUKRUI KOPIL
FOR HIMSELF AND ON BEHALF OF MOPA KOPIL,
WENG KOPIL, POLTI KOPIL AND OTRI KOPIL
Plaintiff

AND:

JOHN WAKON COMMISSIONER FOR POLICE

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mt. Hagen: Hinchliffe J
2000 & 2001: 22nd September and 12th March

DAMAGES ¾ Police Shooting ¾ Question of exemplary damages ¾ Total award of K103,774

Counsel:
P. Dowa for the plaintiff.

12th March, 2001

Hinchliffe J: The Statement of Claim in this matter reads as follows:

1. The plaintiff aged about 45 years comes from Bukapena in the Western Highlands Province. The Plaintiff is the father of Simon Dua Kopil deceased. The deceased died on 28th December 1999 at the Mount Hagen General Hospital after being shot by policemen from Mount Hagen Police Station. Prior to his death, the deceased was a cash crop farmer earning an estimated income of K50.00 per week.
   
2. The Plaintiff is instituting these proceedings for himself and on behalf of other relatives namely; Weng Kopil, Polti Kopil and Mopa Kopil, Otri Mumukrui and for himself.
   
3. The First Defendant is the Commissioner of Police and as such is the employee/agent or servant of the Second Defendant the Independent State of Papua New Guinea.
   
4. On 28th December 1999 between 4.30 pm and 5.00 pm the deceased was shot dead by an unidentified policeman in the company of an unspecified number of policemen outside Mount Hagen General Hospital at about 5.00 pm. It is alleged that the police involved at that time were from the Task Force and personnel from the Dog Unit attached to the Mount Hagen Police Station.
   
5. The shooting was unlawful and therefore the second defendant is vicariously liable for the actions of the policemen.
   
6. As a result of the unlawful actions of the policemen the Plaintiffs suffered loss. Prior to the death of the deceased, the deceased was in good health and provided to the Plaintiffs as husband, son and father in cash, food, accommodation and company. As a result of the death of the deceased the Plaintiffs have suffered financial loss in terms as set out in the following:
   

(a) Mumukri Kopil - K10.00 per week

(b) Weng Kopil - K10.00 per week

(c) Otri Kopil - K10.00 per week

(d) Mopa Kopil - K10.00 per week

(e) Polti Kopil - K10.00 per week

7. It has also cost the plaintiffs approximately K2,000.00 in funeral and related expenses.
   
8. The plaintiffs also make estate claim in the sum of K3,000.00. The child plaintiff is also claiming K1,000.00 for the risk of early orphanhood.
   
9. The plaintiffs also claim exemplary damages due to the fact that the killing was unlawful, unconstitutional and indiscriminate deprivation of the right to life.
   

And the plaintiff claims:

1. General damages;
2. Exemplary damages,
3. Funeral expenses
4. Estate claim of K3,000.00
5. Risk of orphanhood
6. Interest
7. Cost
   

On the 5th September, 2000, there having being no Notice of Intention to Defend or Defence filed by the defendants, the Court Ordered as follows:

"1. Default judgment be entered for the plaintiffs with damages to be assessed.

2. Leave be granted to the plaintiffs to set these proceedings down for assessment without the consent of the defendants."
   

On the 22nd September, 2000 the matter was reserved for Judgment.

The facts of this case are set out in the Statement of Claim and there is also an eyewitnesses account of the shooting as sworn to by Benny Bakri Pena in his affidavit of the 11th September, 2000. It reads as follows:

1. I can recall on Tuesday 28th December 1999, at about 4.30 pm myself and the deceased namely Simon Doa Kopil were at the PMV bus stop to travel home to Mandan Block.
   
2. Then a 15 seater bus arrived so both of us jumped into the front seats. I sat in the middle whilst the late Simon sat in the co-driver seat.
   
3. Suddenly, two police vehicles surrounded the PMV bus at the bus stop. I saw the policemen were loaded in those vehicles.
   
4. The deceased came out of the bus to see what was happening and the policemen wanted to capture him. He ran towards the Bamboo Height School where policemen chased him. I came out of the bus and followed the deceased, chased by policemen.
   
5. I ran behind the policemen chasing the deceased to Bamboo Height School and further down towards Mt. Hagen General Hospital Road.
   
6. I arrived at the "T" junction street links main market road to Mt. Hagen Hospital road.
   
7. By then, the deceased ran into the resident opposite that "T" junction road. I saw a police vehicle travelling at high speed from behind the Bamboo Height School drove straight behind the deceased into the resident.
   
8. Later, I did not see what was happening but heard a gun fire. Then I saw the deceased on the other side of the house. He put both hands up as a sign of surrender to police, and stepped out.
   
9. I saw he was shot on his leg and injured, by a policeman. During the time, policemen armed guns had already surrounded him. Policemen did not hesitate but shot him at about two (2) metres away from the deceased in front of the residents. Policemen also threatened the public watching the incident, in fact they used firearms.
   
10. Later, the deceased fell onto the footpath helplessly for some minutes. Then, policemen dragged him and threw him inside the police vehicle like a piece of log.
    
11. I followed the police vehicle carrying the deceased to the hospital.
    
12. Finally, I went to the hospital to find out the condition of the deceased but he was dead.
    

The deceased is survived by the following:

Name	Relationship	Age
(a) Mumukrui Kopil	Father	45 years old
(b) Wong Kopil	Wife	25 years old
(c) Polti Kopil	wife	25 years old
(d) Otri Kopil	Mother	45 years old
(e) Mona Kopil	Daughter	5 years old

Dependency Loss

When the deceased was alive, he used to provide for the defendants as his father, wife and children. In particular he provided food, shelter, accommodation and company. It is difficult to equate the contribution made to the family in monetary value but a sum of K10.00 per week capitalising at 3% should be allotted for each dependent which is summarised as follows:

Name	Dependent period	Amount
(a) Mumukrui Kopil	10 years	K 4,520.00
(b) Wong Kopil	30 years	K 10,000.00
(c) Polti Kopil	30 years	K 10,000.00
(d) Otri Kopil	10 years	K 4,520.00
(e) Mona Kopil	14 years	K 5,968.00
	TOTAL:	K35,788.01

Funeral Expenses

There is no proof on file regarding the funeral expenses and this part of the claim is refused.

Estate Claim

I award K1500.

Exemplary Damages

Section 12(1) of the Claims By and Against the State Act provides as follows:

"12. Judgements Against The State

(1) No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages."

The only eyewitness evidence before the court is that of the said Benny Bakri Pena in his said affidavit. After reading that affidavit I am quite satisfied that there has been a severe breach of Constitutional rights. Apart from anything else, the police shot the deceased again after he had surrendered to them. The deceased was unarmed and was being pursued by a large number of armed police. The deceased was on foot and to my mind, easily apprehendable. There was no need to shoot him. The medical evidence indicates that not only was he hit with pellets from a shotgun but he was also hit in the knee with a bullet from a rifle. To say that the actions of the police on this occasion were brutal would be making an understatement. Also it appears that the deceased was an innocent person and not an escapee as the police had thought. In his affidavit of the 11th September, 2000, Kengal Kopi swears as follows:

1. I come from Bukapena village and I a village leader.
   
2. I know the plaintiff very well. He is my brother.
   
3. The deceased, Simon Dua, was my nephew. I learnt of his untimely death at hands of the policemen on the next day, 29th December 1999.
   
4. I then came to town to enquire of the death of the deceased. I went straight to the police station at Mt. Hagen.
   
5. I went and saw the Police Station Commander at that time. I was accompanied by our Councillor, Thomas Moka. We spent about 2 hours at his office.
   
6. I was told that the deceased was mistaken for a prisoner who was known to the police as one "Rombugl Pagle" of Kagamuga.
   
7. This was confirmed and again confirmed by the CID that the deceased was an innocent man. He was mistaken for the prison escapee.
   
8. We requested the Provincial Police Commander to investigate and take appropriate action against the policeman concerned. We gave our statements.
   
9. The Provincial Police Commander, Allan Kundi assured us that they would do the investigation and take appropriate action.
   
10. But to date, nothing has happened.
    
11. I keep on asking them what action they have taken so far, and each time they say they would take some action but again no action has been taken so far.
    

I have no reason to disbelieve the deponent in his affidavit, it certainly has not been contested by the defendants. There is no doubt that this is a most unfair and brutal killing of an innocent man by police. I have no doubt at all that exemplary damages are warranted in this case. Exemplary damages are an award for oppressive, arbitrary or unconstitutional actions by the servants of the government (see Assessment of Damages by Harold Luntz, 2nd edition, at page 64.)

They are also to properly compensate the plaintiff(s) for the loss suffered. It serves twin aims to punish the defendant(s) but also for compensation to the victim(s).

Mr. Dowa, in his written submissions filed on the 18th September, 2001, sets out a number of previous cases involving police shooting causing the death of citizens. Those cases, except for one, are between eight and eighteen years old. The most recent is about four years old. Of the older cases the approximate figure for exemplary damages is about K30,000. In the most recent case, Lespian Nius v State, the Court awarded K40,000. In fact that was a decision of mine in the National Court sitting at Lae. In recent years the purchasing power of the kina has declined considerably and K30,000 or K40,000 now does not have the value that it had even four years ago, let alone eight years and more. I am well satisfied that this was the unlawful and brutal killing of an innocent man which was totally unnecessary. He has left behind a grieving family who has lost a loved one at a young age. The deceased was the breadwinner for at least five people. The manner in which he died was quite shocking and his treatment by police during and after the shooting was inhumane.

The police must learn to be extremely careful when they are dealing with members of the public, in particular when they (the police) are armed. On this occasion the police were neither careful or considerate. I note the past cases put to me regarding exemplary damages and that in the most recent case, about four years ago, the figure awarded was K40,000. Previously the figure had been about K30,000. We are now in the Year 2001 and things have changed, certainly the buying power of the kina. I am of the view that the appropriate figure for exemplary damages in this case is K60,000 and I so order.

Risk of Orpanhood

This was not argued and I refuse to make an order.

Therefore I Order that there be Judgment for the plaintiffs in the sum of K103,774 made as follows:

(a) Dependency loss - K 35,788.00
(b) Exemplary damages - K 60,000.00
(c) Estate Claim - K 1,500.00

(d) Interest at 8% from the service of the writ until

Judgment - K 6,586.00
TOTAL: = K103,774.00

I further Order that the second defendant is to pay the plaintiff’s costs. If not agreed then they are to be taxed.

Orders accordingly.
_____________________________________________________________________________

Lawyers for the plaintiffs; Paulus M. Dowa